Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule. 6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2. 6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax). 6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim: (a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or (b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or (c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1: (i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or (ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or (d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or (e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or (f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group. 6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Lydall Inc /De/)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware 6.1 Each of a Tax Claimthe following provisions of this clause 6 shall apply to regulate the conduct of claims under this Deed, the Buyer shall or shall procure provided that the relevant Group provisions of this clause, other than clause 6.2, shall not take effect if in respect of any Claim which is notified to the Warrantors in accordance with clause 6.2 it reasonably appears to the Purchaser that the Vendors or the Company (in the case of the Company prior to Completion) has committed acts or omissions which may constitute fraud or wilful default; and further provided that the Warrantors shall within not take any action in resisting a reasonable time Claim which the Purchaser or the Company (after consultation with the Vendors) reasonably considers would prejudice any right or interest of any of them or of the Purchaser's Group.
6.2 The Purchaser shall give written notice to the Seller Warrantors of any Claim in respect of a Taxation Liability for which the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller Warrantors could become liable under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Deed as soon as reasonably practicable and provided that failure to give such notice shall not reduce, extinguish or otherwise affect the Buyers shall be deemed liability of the Warrantors to have given the Seller Purchaser.
6.3 Subject to clause 6.4, on service of a written notice of their intention on the Tax Purchaser by the Warrantors within the period of ten Business Days following service of a notice under clause 6.2 the Warrantors shall:
6.3.1 at their own expense and subject to the provisions of this Deed be entitled to resist any such Claim on receipt in the name of such notification the Company or the Purchaser; and
6.3.2 as soon as reasonably practicable at their own expense be provided with or have made available to them by the Company all information and documents relating to the Company as are reasonably necessary for the purpose of such resistance and the Purchaser undertakes to procure such provision by the Company provided that, for the avoidance of doubt, this Paragraph 6.2Purchaser's undertaking shall continue for the period during which the Warrantors are resisting the Claim.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers 6.4 The Warrantors shall not be obliged entitled to take resist or procure continue to resist a Claim under clause 6.3 beyond the taking giving of notice of intention to make an appeal against a Claim or, if necessary to avoid the expiration of any action under Paragraph 6.3 in respect period described by clause 6.6.5 below, the making of any Tax Claiman appeal unless:
(a) to 6.4.1 the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company Purchaser (as the case may be) is first indemnified and secured to its reasonable satisfaction against all reasonable costs and expenses which may be properly incurred in relation to any such Claim;
6.4.2 the Company and the Purchaser are at all times kept fully informed of all matters relating thereto and are each supplied with a copy of all correspondence, advice and documents relating thereto;
6.4.3 the appointment of professional advisers in respect thereof is approved in advance by the Purchaser, such approval not to be unreasonably withheld or delayed;
6.4.4 all communication, written or otherwise, relating thereto intended to be sent to the Inland Revenue, H.M. Customs and Excise or other statutory or governmental authority or body is approved in advance by the Purchaser, such approval not to be reasonably withheld or delayed; and
6.4.5 any proposed settlement or compromise of such Claim or any step to be taken in the conduct of such dispute which might affect the amount thereof or the future Taxation Liability of the Company or the Purchaser or any member of the Purchaser's Group is approved by the Purchaser in advance such approval not to be reasonably withheld or delayed.
6.5 Notwithstanding the terms of clause 6.3 the Company shall not be obliged to appeal any decision beyond the first appellate body unless the Warrantors have produced to the Purchaser an opinion of a senior Counsel of not less than 10 years' standing, and practising in the relevant area of law that it would be reasonable to lodge such an appeal.
6.6 The Company or the Purchaser (as the case may be) shall be at liberty without reference to and to the exclusion of the Warrantors to admit, compromise, settle, discharge or otherwise deal with any Claim after whichever is the earliest of:
6.6.1 the expiry of a period of ten Business Days following the service of notice of that Claim on the Warrantors pursuant to clause 6.2 (whether or not such notice was given as soon as reasonably practical) if during that period the Warrantors have not notified the Purchaser (as the case may be) of their wish to resist the Claim;
6.6.2 the service of notice on the Purchaser by the Warrantors to the effect that they do not wish to resist the Claim;
6.6.3 the expiry of a period of ten Business Days following the service of notice by the Purchaser (stating such reasonable steps as the Purchaser wishes the Warrantors to take to properly and effectively resist the claim) on the Warrantors (they having taken over the conduct of a Claim) to the effect that the Warrantors are not properly and effectively conducting the resistance of that Claim if during that period the Warrantors do not take such steps as notified by the Purchaser as are reasonably practicable during that period;
6.6.4 the failure by the Warrantors to satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any material respect any of the Buyers’ rights under provisions of clause 6.4; and
6.6.5 if appropriate, the expiration of any period prescribed by the Taxation Legislation for the making of an appeal against the Claim and/or Taxation Liability in question provided that notice was given by the Purchaser pursuant to clause 6.2 (with respect to such Claim or Taxation Liability) not less than ten clear Business Days prior to such expiration but, for the avoidance of doubt, not otherwise.
6.7 The Warrantors shall be bound to accept for the purposes of this ScheduleDeed any admission, compromise, settlement or discharge of any Taxation Liability and the outcome of any proceedings relating thereto, properly made or arrived at in accordance with the provisions of clause 6.6.
Appears in 2 contracts
Samples: Agreement for the Sale and Purchase of Shares (Berry Plastics Corp), Partnership Agreement (Norwich Injection Moulders LTD)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, 6.4.1 The Vendor shall have the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice right to the Seller control all aspects of the Tax Claim, provided always that the giving defence of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevantany counterclaims with respect to) any claims brought against the Purchaser, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, Purchaser’s Group or any company of the Companies that is at are covered by the time indemnification set forth in question Clause 6.1 (Indemnification by the Vendor), including, without limitation, the selection of counsel, determination of whether to appeal any decision of any court and the settling of any such matter or any issues relating thereto; provided, however, that no such settlement shall be entered into without the consent (which consent shall not be unreasonably withheld) of the Purchaser (with the concurrence of the conflicts committee of the Purchaser) unless it includes a full release of the Purchaser, any member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue Purchaser’s Group and each of any provision in Paragraph 6.4the Companies from such matter or issues, the relevant Buyer or Group Company (as the case may be) may satisfy .
6.4.2 The Purchaser agrees to cooperate fully with the Vendor with respect to all aspects of the defence of any claims covered by the indemnification set forth in Clause 6.2 (Indemnification by the Vendor ), including, without limitation, the prompt furnishing to the Vendor of any correspondence or settle other notice relating thereto that the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to Purchaser, any member of the Purchaser’s Group or any of the Buyers’ rights under Companies may receive, permitting the names of such parties to be utilized in connection with such defence, the making available to the Vendor of any files, records or other information of such parties that the Vendor considers relevant to such defence and the making available to the Vendor of any employees of the Purchaser, any member of the Purchaser’s Group or any of the Companies; provided, however, that in connection therewith the Vendor agrees to use reasonable efforts to minimize the impact thereof on the operations of such parties and further agrees to maintain the confidentiality of all files, records and other information furnished by any such party pursuant to this ScheduleClause 6.4 (Conduct of claims ).
6.4.3 In no event shall the obligation of the Purchaser to cooperate with the Vendor as set forth in Clause 6.4 (Conduct of claims ) be construed as imposing upon the Purchaser an obligation to hire and pay for counsel in connection with the defence of any claims covered by the indemnification set forth in this Clause 6 (Indemnities ); provided, however, that the Purchaser may, at its own option, cost and expense, hire and pay for counsel in connection with any such defence.
6.4.4 The Vendor agrees to keep any such counsel hired by the Purchaser reasonably informed as to the status of any such defence (including providing such counsel with such information related to any such defence as such counsel may reasonably request) but the Vendor shall have the right to retain sole control over such defence.
Appears in 2 contracts
Samples: Business Purchase Agreement (Teekay Tankers Ltd.), Purchase Agreement (Teekay Tankers Ltd.)
Conduct of Claims. 6.1. If a Buyer or a Group Company In the event that any of the Purchasers becomes aware of any matter, which it has determined has given or could give rise to an Indemnity Claim:
(a) The Purchasers shall immediately, and in any event within thirty (30) days from the time that either of the Purchasers learns of or discovers such an Indemnity Claim (the “Notice Period”), send a Tax Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give written notice to the Seller of the Tax Claimevents, provided always circumstances, claims and actions that the giving of such notice shall not be a condition precedent have occurred and have become known to the liability Purchasers that comprise the Indemnity Claim (stating the amount of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax ClaimLoss, the Seller shall notify the Buyers in writing as soon as reasonably practicable if known) and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon bring about the application of either Section 7.1 of this Agreement (the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or“Claim Notice”).
(b) where the Tax Claim or action derives The Seller shall have thirty (30) days from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or its receipt of the Seller at Claim Notice (the “Reply Period”), to notify the Purchasers that it objects or disputes the Claim Notice or the amount or any time aspect of the Indemnity Claim subject of the Claim Notice (the “Claim Objection”), or by or of a Group Company prior to otherwise notify the Closing; orPurchasers that it does not dispute the Claim Notice and accepts liability for the Indemnity Claim (the “Claim Acceptance”).
(c) should If the SellerSeller fails to respond to the Claim Notice within the Reply Period, following receipt of or sends a written notice of a Claim Acceptance within such period, then the Tax Indemnity Claim from a Buyer shall be deemed accepted. The Purchasers may recover the amount of the Loss subject of the Indemnity Claim, and the Seller shall pay the amount thereof to the Purchasers in accordance with Paragraph 6.1:
cash within thirty (i30) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions days from the Seller; orend of the Reply Period.
(d) if, in If within the Buyers’ reasonable opinion, the action requested by Reply Period the Seller pursuant sends a written notice to Paragraph 6.3 is likely to affect materially and adversely the liability Purchasers of a Buyer or a Group Company to Tax or Claim Objection, such notice shall state in detail the business or financial interests of any of them; orreasons why it does not accept liability for the Indemnity Claim.
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it If no agreement is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made reached by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
Parties within thirty (f30) that requires a Group Company to take any action against any person who is at days from the time in question either an employee or director of any member end of the Buyers’ Tax GroupReply Period, or any company that is at notwithstanding xxxxxxx efforts to settle the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4Indemnity Claim, the relevant Buyer or Group Company (as matter shall be referred to the case may be) may satisfy or settle the Tax Liability on such terms as it may Claims Dispute Resolution procedure in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this ScheduleSection 7.7 below.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (PLDT Inc.), Sale and Purchase Agreement (PLDT Inc.)
Conduct of Claims. 6.1. 5.1 If a Buyer or a any member of the Buyer’s Group Company becomes aware of any claim against it which might give rise to a Tax Claim, Claim or Financial Indebtedness Claim then the following provisions shall apply:
5.1.1 the Buyer shall or as soon as is reasonably practical give written notice to the Warrantors of the matter and thereafter shall regularly consult with the Warrantors with respect to the matter;
5.1.2 the Buyer shall provide, and shall procure that each member of the relevant Buyer’s Group Company shall within a will provide, to the Warrantors and the Warrantors’ professional advisers access on reasonable time give notice to premises, personnel and to all relevant assets, documents, records and information within the Seller power, possession or control of the Tax ClaimBuyer’s Group for the purpose of investigating the matter and/or enabling the Warrantors to take such action as is referred to in paragraph 5.1.5(a), provided always that the giving of such notice shall assistance does not unduly interfere with the operation by the Buyer’s Group of its business and provided also that the Warrantors be liable for all third party costs reasonably incurred in providing such assistance;
5.1.3 once a condition precedent Claim, Financial Indebtedness Claim, potential Claim or potential Financial Indebtedness Claim has been notified to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax ClaimWarrantors, the Seller Buyer shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that all other members of the Buyer’s Group retain and preserves all relevant assets, documents, records and information within the power, possession or control of the Buyer’s Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoidof, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Company which are or may be relevant in connection with any Claim but only provided that or Financial Indebtedness Claim for so long as any actual or prospective Claims or Financial Indebtedness Claims remain outstanding;
5.1.4 the Seller Warrantors shall first (at their own cost be entitled to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against copies of any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, documents or records;
5.1.5 the Buyers Buyer shall not be obliged to take or and shall procure that each member of the taking of any action under Paragraph 6.3 in respect of any Tax ClaimBuyer’s Group will:
(a) take such action and institute such proceedings, and give such information and assistance, as the Warrantors may reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the extent matter, save that it the Buyer shall not be required to take any action which, in its sole opinion, would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in might adversely affect the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers goodwill or in default of agreement appointed by the President for the time being reputation of the Institute relevant member of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successBuyer’s Group; orand
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or not make, and shall procure that no member of the Seller at Buyer’s Group shall make, any time or by or admission of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) or compromise or settle any such claim and matter, unless the Buyer has first consulted the Warrantors in relation to such proposed settlement, provided that requires a Group Company to take any action against any person who is at in each case the time in question either an employee or director of any Warrantors shall indemnify and hold harmless each member of the Buyers’ Tax Group, or any company that is at Buyer’s Group to the time in question Buyer’s satisfaction for all reasonable costs and expenses properly incurred as a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue result of any provision in Paragraph 6.4, request or nomination by the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this ScheduleWarrantors.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Zogenix, Inc.), Sale and Purchase Agreement (Zogenix, Inc.)
Conduct of Claims. 6.1. If a Buyer 6.1 Except where the Claim is brought by the Company or a Group Company becomes aware of a Tax Claiman Associated Company, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Associated Company (as the case may be) may satisfy or settle may, with the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any prior written consent of the Buyers’ Indemnified Person, take over and conduct in the Indemnified Person’s name the defence or settlement of any Claim or to prosecute in the Indemnified Person’s name for his or her own benefit any proceedings relating to a Claim. In the event that the Company does not take over and conduct the Indemnified Person’s defence or settlement of any Claim, the Company shall pay for the Indemnified Person’s separate legal counsel in connection with such Claim in accordance with the terms of this Deed.
6.2 Except where the Claim is brought by the Company or an Associated Company, if the Company or Associated Company (as the case may be) exercises its rights under this Schedulesub-clause 6.1 to take over and conduct the Indemnified Person’s defence or settlement of any Claim, the Company shall:
6.2.1 consult with the Indemnified Person in relation to the conduct of the Claim or proceedings on aspects of the Claim or proceedings materially relevant to the Indemnified Person and keep the Indemnified Person reasonably informed of material developments in the Claim or proceedings, provided that the Company or Associated Company shall be under no obligation to provide any information the provision of which is reasonably likely to adversely affect the Company’s or Associated Company’s ability to claim in respect of the relevant loss under any applicable policy of insurance;
6.2.2 take into account the Indemnified Person’s reasonable requests related to the Claim or proceedings (including any settlement) on issues which may be reasonably likely to result in material damage to the Indemnified Person’s reputation; and
6.2.3 have full discretion in the conduct or settlement of any Claim or proceedings relating to such Claim, save that the Company shall not settle any Claim which contains an admission of liability by the Indemnified Person or imposes a penalty on the Indemnified Person without the prior consent of the Indemnified Person (not to be unreasonably withheld or delayed).
Appears in 2 contracts
Samples: Deed of Indemnity (Marex Group PLC), Deed of Indemnity (Marex Group PLC)
Conduct of Claims. 6.1. If (a) When the Purchaser receives notice of any claim made by third parties against the Company which is the basis for a Buyer claim for indemnification (a “Third Party Claim”) or where the Purchaser has any other claim for indemnification other than a Group Company becomes aware of Third Party Claim which is the basis for a Tax Claimclaim for indemnification (the “Other Claims”), the Buyer Purchaser shall give written notice to the Seller. Such notice shall contain in reasonable detail: (i) a description of the facts and the nature of the claim; (ii) a description of the grounds on which the Purchaser considers that the facts give rise to liability for Losses by the Seller under this Agreement; (iii) the amount claimed, if known at that time; and (v) any relevant background documentation relating to the claim in the possession of the Purchaser or the Company.
(b) The notice of Third Party Claims and the notice of Other Claims shall be given no later than 30 (thirty) Business Days after the Purchaser became aware thereof. Any notice received by the Seller on any day thereafter will be deemed to be time-barred and may not cause any liability by the Seller, independent of whether the claim should turn out to be essential and justified.
(c) The Purchaser shall, and shall procure that the Company shall, take any action concerning Third Party Claims and give all the relevant Group information to the Seller and its consultants.
(d) The Seller shall have the right to participate, and, to the maximum extent permitted by Applicable Law, join, at its costs, by attorneys or consultants of its choosing, in the defence of any claim, action, suit or proceeding asserted or initiated against the Purchaser and/or the Company shall within constituting the subject matter of a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent kind referred to the liability of the Seller under this ScheduleParagraph 8.6(a) above.
6.2. If the Seller becomes aware of a Tax Claim(e) The Purchaser shall not, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoidCompany shall not, disputemake any admission of liability, defendagreement, resist, appeal settlement or compromise with any Tax Claim (third party in relation to any claim without the prior written consent of the Seller; provided, however, that if a “Disputed Tax Claim”) or any matter relating firm offer to settle is made to the Disputed Tax Claim but only provided that the Seller shall first (Company or to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller Purchaser and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of but not the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days Purchaser, is willing to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinionaccept, the action requested by Purchaser and/or the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation, at their own expense, and the Seller’s liability shall be limited to the amount of the proposed settlement.
(f) Within 30 (thirty) Business Days from receipt of the relevant notice in accordance with Paragraphs 8.6(a) and 8.6(b), the Seller may satisfy or settle send a written notice to the Tax Liability on such terms as it may Purchaser in its absolute discretion think fit without prejudice accordance with Article 12 stating:
(i) that the claim is covered by the provisions set forth under this Agreement and whether the same:
(A) accepts the amount of the claim, in which case the Seller shall, according to Paragraph 8.2(e), pay the amount of the claim in the form and within the time period to be agreed between the Parties;
(B) does not consider that the amount of the claim is correct, in which case any of the Buyers’ rights Parties may start the proceeding contemplated in Article 14 unless a different agreement is reached by the Parties;
(ii) that the claim is not covered under this ScheduleAgreement and that it has no obligation to indemnify any Loss. In this case, any of the Parties may start the arbitration proceedings contemplated in Article 14.
Appears in 2 contracts
Samples: Quota Sale and Purchase Agreement, Quota Sale and Purchase Agreement (Evoqua Water Technologies Corp.)
Conduct of Claims. 6.1. If 5.1 The Purchaser shall notify the Vendor in writing of any Claim for Taxation which comes to its notice, whereby the Vendor is or may become liable to make a Buyer payment to the Purchaser under this deed or a Group Company becomes aware for breach of a Tax ClaimWarranty. Where a time limit for appeal applies to the Claim for Taxation, the Buyer notification shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing given as soon as reasonably practicable after the date on which the Claim for Taxation comes to the notice of the Purchaser and in any event not later than 10 Business Days before the Buyers expiry of the time limit. Where no time limit applies or the period to which the limit relates has not commenced, the notification shall be given within 21 Business Days of that date.
5.2 The Purchaser shall ensure that a Claim for Taxation to which this deed applies, or in respect of which the Vendor is or may become liable to make a payment to the Purchaser for a breach of a Tax Warranty, is, so far as reasonably practicable, dealt with separately from claims to which it does not apply and is not paid prematurely; and, for this purpose, any payment made by the Company to avoid incurring interest or a penalty in respect of unpaid Taxation shall be deemed not to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2be paid prematurely.
6.3. Subject 5.3 The Purchaser shall take or use reasonable endeavours to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) Company shall take such action as the Seller may Vendor shall reasonably request by notice in writing require to avoid, disputemitigate, defendresist or contest any Claim for Taxation to which this deed applies or in respect of which the Vendor is or may become liable to make a payment to the Purchaser in respect of a breach of a Tax Warranty and in particular (but without limitation) shall use all reasonable endeavours to ensure, resistat the request in writing of the Vendor, appeal that (a) the 113 Vendor is placed in a position to dispute on behalf of the Company any Claim for Taxation to which this deed applies or compromise in respect of which the Vendor is or may become liable to make a payment to the Purchaser in respect of a breach of a Tax Warranty and (b) provide the Vendor with access to all relevant documents, accounting and other records (including without restriction direct access to all relevant employees) and (c) shall use reasonable endeavours to render, or cause to be rendered, to the Vendor all such other assistance as the Vendor may reasonably require in disputing the Claim for Taxation.
5.4 Subject to clause 5.5, the Vendor shall be entitled, on behalf of the Company, to instruct such solicitors or other professional advisers as the Vendor may nominate, to act on behalf of the Vendor or the Company, to the intent that the conduct, and costs and expenses, of the dispute shall be delegated entirely to and be borne solely by the Vendor.
5.5 In connection with the conduct of any Tax Claim (a “Disputed Tax Claim”) or any matter dispute relating to a Claim for Taxation to which this deed applies or in respect of which the Disputed Tax Claim but only provided that the Seller shall first (Vendor is or may become liable to make a payment to the Buyers’ reasonable satisfaction) indemnify Purchaser for breach of a Tax Warranty:
5.5.1 the Buyers and/or Vendor shall keep the Group Companies (as required by the Buyers) against any lossesCompany informed of relevant matters and shall forward, damagesor procure to be forwarded, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability finance director of the Seller under this ScheduleCompany copies of relevant correspondence and other written communications;
5.5.2 the Vendor shall at the request of the Purchaser indemnify and secure the Purchaser and each Group Company, to the Buyers shall not be obliged to take or procure reasonable satisfaction of the taking of any action under Paragraph 6.3 Purchaser, in respect of any Tax Claim:liability, costs and expenses of disputing any Claim for Taxation to which this deed applies;
(a) 5.5.3 the Vendor shall not be entitled to require the extent that it would involve a Group Purchaser or the Company contesting to make any Disputed Tax Claim before settlement or compromise of the dispute nor agree any court or other appellate body, unless matter in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being conduct of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 dispute which is likely to affect materially and adversely the liability basis of a Buyer the future Liability to Taxation of the Company, without the prior approval of the Purchaser, which approval shall not be unreasonably withheld or a Group Company delayed. The Purchaser shall not be entitled to Tax withhold consent insofar as the settlement or compromise involves the utilisation or reduction of Vendor's Reliefs or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for agreement affects such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupReliefs.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Panavision Inc), Agreement for the Sale and Purchase of Share Capital (Panavision Inc)
Conduct of Claims. 6.1. 9.1 If a the Buyer or a Group Company becomes aware of any fact, matter or circumstance which could give rise to a Tax Claimclaim under the Warranties or under clause 11, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice of such fact, matter or circumstance to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable within a reasonable period following becoming aware of any such fact, matter or circumstance and that it could be the Buyers shall be deemed to have given subject matter of a claim.
9.2 If any claim is made against the Seller notice Buyer or any member of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject Buyer’s Group by any third party which could in turn lead to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required claim by the Buyers) Buyer against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take Warranties or procure under clause 11 then the taking of any action under Paragraph 6.3 in respect of any Tax ClaimBuyer shall:
(a) give notice of such claim to the extent Seller as soon as reasonably practicable after the Buyer becomes aware of it and that it would involve could be the subject matter of a claim;
(b) keep the Seller promptly and fully informed as to the progress of any such claim and shall procure that the Seller are promptly sent copies of all relevant communications and other documents (written or otherwise) transmitted to any other party to any proceedings or their agents or professional advisers (including, without limitation, pleadings and any opinion of Counsel relating to any proceedings against any third parties);
(c) subject to the Buyer and the relevant member of the Buyer’s Group Company contesting being entitled to employ its own legal advisers and being indemnified and secured to its reasonable satisfaction by the Seller against all liabilities, reasonable costs, reasonable expenses, damages and losses (including, without limitation, the reasonable and proper costs of its legal advisers) suffered or incurred in connection with any Disputed Tax Claim before any court such claim, take, and shall procure that each member of the Buyer’s Group shall take, all reasonable steps so as to recover or other appellate bodyminimise or resolve such liability or dispute and, unless upon request by the Seller, permit the Seller to take sole conduct of such actions as the Seller deems appropriate in connection with such claim, in the written opinion name of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or relevant member of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; orBuyer’s Group;
(d) if, in the Buyers’ comply with all reasonable opinion, the action requested by requests of the Seller pursuant in relation to Paragraph 6.3 is likely such claim including (without limitation) giving the Seller reasonable access to affect materially premises, personnel, documents and adversely records for the liability purpose of a Buyer or a Group Company investigating the matters giving rise to Tax or the business or financial interests of any of themsuch claim; orand
(e) if a not (and shall procure that no member of the Buyer’s Group Company would be required to appeal against shall) accept or pay or compromise any assessment such liability or demand for Tax where it is a requirement for such an appeal that claim without the Taxation be paid, unless payment has previously been made by prior written consent of the Seller (such consent not to a be unreasonably withheld or delayed); PROVIDED THAT nothing in this paragraph 9.2 shall require the Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, Buyer’s Group to take or refrain from taking any company that is at action which it reasonably considers would materially and adversely affect the time in question a member goodwill or bona fide commercial interests of the Buyers’ Tax Buyer’s Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Live Nation Entertainment, Inc.)
Conduct of Claims. 6.1. Access to and preservation of information
11.1 If a Buyer the Purchaser or a member of the Purchaser’s Group Company becomes aware of any Claim or a claim under the Tax ClaimDeed or any matter or circumstance which might give rise to a claim or of an entitlement to recover (whether by payment, discount, credit, relief or otherwise) from a third party an amount which relates to the subject matter of a Claim or a claim under the Tax Deed, the Buyer Purchaser shall or and shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller one of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers Company and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax ClaimSubsidiaries shall:
(a) within 10 Business Days of such claim coming to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being notice of the Institute Purchaser give written notice thereof to the Vendor specifying the nature of Chartered Accountants the possible claim in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; ordetail;
(b) where subject to the Tax Claim proviso at the end paragraph 11.1(d), not make any admission of liability, agreement or action derives from compromise to or arises out of or is with the said third party without the prior agreement in connection with any dishonest or fraudulent act or omission or willful default by or writing of the Seller at any time or by or of a Group Company prior to the Closing; orVendor;
(c) should give the SellerVendor and their professional advisers reasonable access during normal business hours to the Properties and to any relevant chattels, following receipt of written notice accounts, documents and records within the possession or control of the Tax Claim Purchaser to enable the Vendor and their professional advisers to examine such chattels, accounts, documents and records and to take copies and photographs thereof at its own expense. Provided that the rights of the Vendor under this paragraph (c) shall be subject to any confidentiality restriction contained in this Agreement or any other document to which the Vendor is a party and be suspended during any period during which the Purchaser or any member of the Purchaser’s Group and the Vendor is involved in any dispute relating to any member of the Purchaser’s Group (but such suspension shall only take effect from a Buyer the date on which formal legal proceedings are initiated in accordance with Paragraph 6.1relation to such dispute), provided that such suspension:
(i) fail within fifteen (15) Business Days shall only extend to serve notice on any matter which is the Buyers under Paragraph 6.3; orsubject of such dispute;
(ii) fail within fifteen (15) Business Days shall not operate to notify the Buyers in writing extent that the Vendor requires access to any information for the purposes of complying with any requirements of law or of the Stock Exchange or of any further action to be taken by a Buyer other relevant national or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Sellersupra-national regulatory, governmental or quasi-governmental authority; orand
(diii) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant shall not operate to Paragraph 6.3 is likely to restrict or adversely affect materially and adversely the liability any rights of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, discovery or any company that is at the time in question a member similar or other rights arising out of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice relation to any of litigation or similar proceedings which the Buyers’ rights under this Schedule.Vendor would otherwise have; and
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer 7.1 With effect from Completion, the Relevant Purchasers shall have control and conduct of any Environmental Proceeding and/or Remedial Action subject to paragraphs 7.2 and 7.3 below.
7.2 Subject to paragraph 7.3 below, the Relevant Sellers have the right to take conduct and control of any Environmental Proceeding which forms the subject of an Environmental Claim, including the appointment of legal and other professional advisers and the making of any settlement or a Group Company becomes aware compromise of a Tax the Environmental Proceeding, provided written notice is given to the Relevant Purchasers, in which case the Relevant Purchasers shall provide the Relevant Sellers with any such assistance and access to information and to facilities or the Indemnified Properties as the Relevant Sellers may reasonably require in relation to such Environmental Proceeding.
7.3 In relation to any Environmental Proceeding which forms the subject of an Environmental Claim, the Buyer Relevant Purchasers (in the event that paragraph 7.1 applies) or the Relevant Sellers (in the event that paragraph 7.2 applies) as appropriate (referred to in this paragraph as the “Conduct Party”) shall or shall procure ensure that (subject to appropriate arrangements to maintain confidentiality and privilege):
(A) the relevant Group Company shall within a reasonable time give notice party who is not the Conduct Party (the “Other Party”) is provided with regular updates as to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses steps which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time are being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is taken in connection with any dishonest or fraudulent act or omission or willful default by or Environmental Proceeding and any relevant Remedial Action;
(B) copies of all material documentation and correspondence in relation to the Environmental Proceeding and any relevant Remedial Action shall be provided at the Other Party’s cost including drafts where they are material;
(C) reasonable requests of the Seller Other Party will be complied with at the Other Party’s cost where applicable;
(D) the Other Party (including their legal and other professional advisors) is given a reasonable opportunity to review and comment in advance on any proposed specifications for Remedial Action and/or work programmes relating to that Environmental Claim, provided that such comments are received within a period to be specified by the Conduct Party at that time or by or of a Group Company prior and the Conduct Party shall have reasonable regard to such comments;
(E) the Other Party is allowed to attend meetings with the Environmental Authority as an observer (to the Closing; orextent permitted to do so by the Environmental Authority) as an observer, provided that such meetings shall not be rearranged if the Other Party is unable to attend at the proposed time;
(cF) should the SellerOther Party is allowed to attend meetings with consultants and advisors when planning any Remedial Action as an observer, following receipt of written notice of provided that such meetings shall not be rearranged if the Tax Claim from a Buyer in accordance with Paragraph 6.1:Other Party is unable to attend at the proposed time;
(iG) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to paragraph 9 (Mitigation) all reasonable efforts are made in the conduct of the claim to minimise the amount of Environmental Losses;
(H) where the Relevant Purchasers are the Conduct Party, such action is taken as the Relevant Sellers may reasonably require (having regard to the operations and reputation of the Graphic Paper Business and any of the Buyers’ other businesses within the Relevant Purchaser’s Group) to resist, dispute, contest, avoid, appeal, compromise or defend the Environmental Proceeding and progress the Remedial Action (including making all available counter-claims and exercising all rights under this Scheduleof set-off against third parties);
(I) material Remedial Action shall not be carried out without prior written notice to the Relevant Sellers; and
(J) where the Relevant Purchasers are the Conduct Party, no admission of liability, agreement, settlement or compromise in relation to the Environmental Proceeding is made without the prior written consent of the Relevant Sellers which consent shall not be unreasonably withheld.
Appears in 1 contract
Samples: Master Business and Share Sale and Purchase Agreement (Sappi LTD)
Conduct of Claims. 6.1. 8.1 If a either the Buyer or the Company become aware of a Group Company matter which they reasonably consider might give rise to a Claim (other than a Claim in respect of Tax to which the provisions of paragraph 9 of the Tax Covenant shall apply) or the Seller becomes aware of a Tax Claimmatter which it reasonably considers might give rise to a claim pursuant to the Buyer’s Warranties then such party:
(a) shall (or, in the Buyer shall or case of the Buyer, shall procure that the relevant Group Company shall within a reasonable time shall) as soon as reasonably practicable give notice to the Seller or the Buyer as the case may be of the Tax Claim, provided always that matter and shall consult with the giving of Seller or the Buyer as the case may be with respect to such matter but such notice shall not be a condition precedent to the liability of the Seller under this Schedule.or the Buyer as the case may be;
6.2. If (b) shall provide to the Seller becomes aware or the Buyer as the case may be and its advisers reasonable access (at reasonable hours and with reasonable prior notice having been given) to premises and personnel and to relevant assets, documents and records within the Buyer´s or the Seller’s Group (as the case may be) for the purposes of a Tax Claim, investigating the Seller shall notify matter;
(c) (at the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice requesting party’s cost) may take copies of the Tax Claim on receipt of such notification for documents or records, and photograph the purpose of this Paragraph 6.2.premises or assets, referred to in clause 8.1(b);
6.3. Subject (d) subject to the following provisions of this Paragraph 6.3clause 8 and clause 7.12, the Buyers shall (and where relevant, in the case of the Buyer shall procure that the relevant Group Companies Company shall) take such action and give such information and assistance in connection with the affairs of the Buyer or the Company or the Seller as the Seller requesting party may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, appeal resist or compromise any Tax Claim defend against the matter;
(a “Disputed Tax Claim”e) shall indemnify the other party against all costs and expenses reasonably incurred by that other party or any matter relating to member of such party’s Group in complying with their obligations under this clause 8.
8.2 The Buyer and, as the Disputed Tax Claim but only provided that case may be, the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 of the following actions pursuant to its obligations contained in respect of any Tax Claim:clause 8.1(d):
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing submission of any further action proposal to be taken by a Buyer settle or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from compromise the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been relevant matter made by the Seller to a or the Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) of which the Buyer (or the Seller as the case may satisfy be) (acting reasonably) does not approve;
(b) agreeing to the settlement or compromise of any claim or any proposal for the same which is likely to affect the future liability of the Company, the Buyer or any member of the Buyer´s Group or the Seller or any member of the Seller’s Group unless the Seller (or the Buyer as the case may be) indemnifies the Buyer (or the Seller as the case may be), or the Company or the relevant member of the Buyer´s Group or the Seller’s Group (as the case may be) against any such future liability;
(c) complying with any unreasonable instruction of the Seller or the Buyer as the case may be or taking any action or procuring the taking of any action which the Buyer or the Seller (as the case may be) considers (acting reasonably) to be onerous or prejudicial to the Buyer or any member of the Buyer´s Group or the Seller or any member of the Seller’s Group (as the case may be).
8.3 If a Party does not request the other to take action pursuant to clause 8.1(d) or shall fail to indemnify the other Party or the Company concerned in accordance with clause 8.1(e) within 14 days of the written notice to the Seller (or the Buyer as the case may be) served in accordance with clause 8.1
(a) the Buyer (or the Seller as the case may be) or the Company shall be free to pay or settle the Tax Liability relevant matter on such terms as it may in its absolute discretion think fit without prejudice fit.
8.4 Any Claim or claim under the warranties given by the Buyer shall (if it has not been previously satisfied, settled or withdrawn) be deemed to be irrevocably withdrawn and waived at the expiration of twelve months from the date of giving notice of such Claim (or claim under the Buyer’s Warranties) unless legal proceedings in respect thereof have been commenced by the other party by issuing and serving such proceedings on the Seller (or the Buyer as the case may be) and the loss giving rise to any such Claim (or claim under the warranties given by the Buyer) which shall be so deemed withdrawn and waived shall not be capable of being the subject of a further Claim (or claim under the Buyer’s Warranties).
8.5 The Seller acknowledges that if any Warranty is breached or proves to be untrue or misleading or if a Claim is made and in assessing the loss to the Company or the Buyer all costs and expenses reasonably and properly incurred by the Buyer or the Company as a result of such breach or of the Buyers’ rights Warranty being untrue or misleading shall be taken into account and form part of any Claim.
8.6 Notwithstanding any failure by the Buyer to notify the Seller or of the Seller to notify the Buyer (as the case may be) pursuant to clause 8.1
(a) the Buyer (or the Seller as the case may be) shall not (and shall procure, only in the case of the Buyer, that the Company shall not) settle or compromise any such claim or make any admission of liability without the prior written consent of the Seller or the Buyer (as the case may be) (which shall not be unreasonably withheld or delayed).
8.7 If any Claim (or claim under the warranties given by the Buyer) shall arise by reason of some liability which, at the time the Claim (or claim under the Buyer’s Warranties) is notified to the Seller (or the Buyer as the case may be), is contingent only, the Seller (or the Buyer as the case may be) shall not be under any obligation to make any payment in respect of such Claim (or claim under the Buyer’s Warranties) unless and until the contingent liability crystallises as an actual liability. Provided that such Claim shall have been notified to the Seller or the Buyer (as the case may be) in accordance with clause 7.3 then clause 8.4 shall be amended in relation to such Claim (or claim under the Buyer’s Warranties) so as to require that legal proceedings be commenced within twelve months from the date on which the said liability ceases to be contingent or becomes capable of being quantified, as the case may be.
8.8 Nothing in this Scheduleagreement shall be deemed to relieve the Buyer or of the Seller (as the case may be) from any duty to mitigate any loss or damage incurred by it.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If a the Buyer or a Group the Company becomes aware of a Tax any Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time as soon as reasonably practicable give notice of such Claim to the Seller of the Tax Claim, provided always Principal Sellers PROVIDED that the giving of such notice shall not be a condition precedent to the liability of the Seller Principal Sellers under this Schedule.
6.2. 4.2 If the Seller becomes aware of a Tax ClaimPrincipal Sellers shall first indemnify and secure the Company and the Buyer to their reasonable satisfaction against any Tax, additional Tax, losses, fines, penalties, interest, charges, damages, costs and expenses, the Seller shall notify the Buyers in writing as soon as reasonably practicable Company and the Buyers Buyer shall be deemed subject to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) clause 4.3 take such action as the Seller Principal Sellers may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal, compromise, or defend such Claim.
4.3 Neither the Buyer nor the Company shall be obliged to appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any lossesClaim if, damageshaving given the Principal Sellers notice of the receipt of that Claim, costs or expenses which it may suffer or incur as a result has not within ten Business Days received instructions in writing from the Principal Sellers in accordance with the preceding provisions of taking such action (including any additional liability this clause to Tax)make that appeal.
6.4. Without prejudice to 4.4 Neither the liability of Buyer nor the Seller under this Schedule, the Buyers Company shall not be obliged to take or procure the taking of any action or further action under Paragraph 6.3 this clause in respect of any Claim if, in the reasonable opinion of the Buyer, either the Principal Sellers, or the Company prior to its being in the ownership of the Buyer, have committed acts or omissions which may constitute fraudulent or negligent conduct (within Section 36 Taxes Management Axx 0000 or Finance Axx 0000 Schedule 18 Paragraph 46).
4.5 Neither the Buyer nor the Company shall be required to take any action which either interferes with the normal course of its business or which in its reasonable opinion is likely to prejudice its business or its relationship with any Tax Claim:Authority or result in the Buyer or any company which forms part of the Buyer's group incurring a Liability to Tax or an increased Liability to Tax.
(a) 4.6 Neither the Buyer nor the Company shall be obliged to the extent that it would involve a Group Company take any action under this clause 4 which involves contesting any Disputed Tax Claim before any court or other appellate body, body (excluding the Tax Authority demanding the Tax in question) unless in the Principal Sellers furnishes the Buyer with the written opinion of tax counsel of appropriate relevant experience appointed by agreement between at least five years' standing to the Seller effect that an appeal against the Claim in question will, on the balance of probabilities, be won.
4.7 The Buyer and the Buyers Company shall be at liberty, without reference to the Principal Sellers, to admit, compromise, settle, discharge or in default of agreement appointed by otherwise deal with any Claim after whichever is the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either earliest of:-
4.7.1 the Buyer or the Seller Company being notified by the Principal Sellers that they consider the Claim should no longer be resisted;
4.7.2 the expiry of a period of ten Business Days following the service of a notice by the Buyer or the Company on the Principal Sellers, requiring the Principal Sellers to clarify or explain the terms of any request made under clause 4.2 during which period no such clarification or explanation has been received by the Buyer or the Company; and
4.7.3 if appropriate, the expiration of any period prescribed by applicable legislation for the making of an appeal is a reasonable course of action given all against either the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing decision of any further action to be taken by a Buyer court or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and tribunal in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Groupsuch Claim, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy .
4.8 The Principal Sellers shall be bound to accept for the purposes of this Schedule any admission, compromise, settlement or settle discharge of any Claim and the Tax Liability on such terms as it may outcome of any proceedings relating thereto made or arrived at in its absolute discretion think fit without prejudice to any accordance with the provisions of the Buyers’ rights under this Scheduleclause 4.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Argonaut Technologies Inc)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer 7.1 The Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Covenantors as soon as reasonably practicable and the Buyers after it shall become aware of any Claim in respect of which a claim may be deemed made pursuant to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2deed.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers 7.2 The Purchaser shall (and where relevant, shall procure that the Company shall provide such relevant Group Companies shall) take such action information and documentation as the Seller Covenantors may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, compromise or compromise defend any Tax Claim and any adjudication in respect thereof ("DISPUTE") subject to the Purchaser and the Company being indemnified to the Purchaser's reasonable satisfaction by the Covenantors against all losses, costs, expenses, interest, penalties and surcharges thereby incurred.
7.3 Subject to the provisions of this clause 7, any dispute relating to a “Disputed Tax Claim”) liability to Taxation shall be conducted by the Covenantors but:
7.3.1 the Covenantors shall keep the Purchaser fully informed of all relevant matters and shall promptly forward or any matter procure to be forwarded to the Purchaser copies of all relevant correspondence and other relevant information and documentation;
7.3.2 all communications written or otherwise relating to the Disputed Tax Claim but only provided that the Seller dispute which are to be transmitted to a Taxation authority shall first (be submitted to the Buyers’ reasonable satisfaction) indemnify Purchaser for approval and shall only be finally transmitted if such approval is given (such approval not to be unreasonably withheld or delayed);
7.3.3 the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs appointment of solicitors or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice other professional advisers shall be subject to the prior written approval of the Purchaser;
7.3.4 the Covenantors shall make no settlement or compromise of the dispute nor agree any matter in the conduct of such dispute which is likely to increase the amount thereof or adversely affect the future liability of the Seller under this Schedule, Purchaser or the Buyers shall not be obliged Company to take or procure Taxation without the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being prior approval of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
Purchaser (b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action such approval not to be taken by a Buyer unreasonably withheld or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupdelayed).
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 3.1 If a Buyer the Target receives or a Group Company becomes aware of a Tax ClaimClaim for Tax, the Buyer shall or shall procure that the relevant Group Company Target shall within a reasonable time give written notice of such Claim for Tax to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and and, in any event, in the Buyers shall be deemed case where the Claim for Tax consists of an assessment or demand for which the period for response or appeal is time limited, within ten Business Days prior to have given the expiry of such time limit (provided that failure to deliver such notice should not restrict the ability of the Buyer to make a claim against the Seller notice of the Tax Claim on receipt of such notification for the purpose pursuant to this Schedule).
3.2 Subject to this paragraph 3.2 and 3.5 of this Paragraph 6.2.
6.3. Subject to Part the following provisions of this Paragraph 6.3, the Buyers Buyer shall (and where relevant, or shall procure that the relevant Group Companies shall) Target shall take such action to avoid, dispute, resist, appeal, mitigate, compromise or contest any Claim for Tax as the Seller may reasonably request by notice in writing and the Seller may elect to avoidhave any action referred to in this paragraph 3.2 delegated to it and conducted by the Seller or professional advisers nominated by it for this purpose, disputein each case acting in the name of the Target, defendbut (in the case of professional advisors) reporting to the Seller, resist, appeal or compromise in which event the Seller shall:
(a) keep the Buyer fully informed of all matters relating to any Tax Claim (a “Disputed Tax Claim”) or any matter action referred to in paragraph 3.2 of this Part and deliver to the Buyer copies of all material written correspondence relating to the Disputed action referred to in paragraph 3.2 of this Part;
(b) inform the Buyer in writing of the content of all material discussions, correspondence or other communication which it is intending to have with or submit to any Tax Claim but only Authority at least 10 business days prior to the intended discussion or submission of the correspondence or other communication (in each case the “Intended Communication”) to allow the Buyer to comment thereon. The Seller shall take account of and reflect in the Intended Communication any reasonable comments made by the Buyer;
(c) not submit, make or have any Intended Communication until the Buyer has either supplied the Seller with its comments or notified the Seller that it has no comments provided that if the Buyer does not supply any comments or give any such notification within 10 business days of receipt of the Intended Communication, then the Seller shall first be entitled to submit, make or have the Intended Communication.
3.3 The Buyer shall not be obliged to procure that the Target makes or defends any appeal against a determination by the Tax Chamber of the First-tier Tribunal unless leading Tax counsel of at least 7 years standing (“Counsel”) advises that the appeal or defence has more than a 50% chance of success. Counsel shall be chosen jointly by the Seller and the Buyer and shall be instructed by the Seller who shall take account of all reasonable comments made by the Buyer in preparing the instructions. The Buyer shall be entitled to attend any conference with Counsel.
3.4 The Buyer shall not be obliged to, or to procure the Target to, agree to the Buyers’ settlement or compromise of any Claim for Tax or any proposal for such settlement or compromise which, in the Buyer’s reasonable satisfaction) indemnify opinion is likely to have a material adverse effect on the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the future Tax liability of the Seller under this Schedule, the Buyers Target;
3.5 The Buyer shall not be obliged to take or procure that the taking of Target takes any action under Paragraph 6.3 in respect of any Tax Claimaction:
(a) where the Seller requests an appeal and the appeal cannot be made without the Tax the subject of the Claim for Tax being paid to the extent that it would involve a Group Company contesting any Disputed relevant Tax Claim before any court or other appellate bodyAuthority, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and pays such amount to the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successBuyer; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should if the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen becomes insolvent;
(15ii) Business Days to serve notice on has an administrative receiver or other receiver appointed over all or any of its assets or undertaking;
(iii) enters into any composition or arrangement with or for the Buyers under Paragraph 6.3benefit of its creditors; or
(iiiv) fail within fifteen (15) Business Days to notify if the Buyers in writing equivalent of any further action of the events described in this clause inclusive occurs in relation to be taken by a the Seller under the laws of any jurisdiction;
(c) which would constitute fraudulent or negligent conduct on the part of the Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from and/or the SellerTarget; or
(d) if, in which would be materially prejudicial to the Buyers’ reasonable opinionTax affairs of the Buyer, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer Target or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Buyer’s Group.
6.5. If Paragraph 6.3 does not apply 3.6 The Seller shall indemnify the Buyer and the Target to their reasonable satisfaction against all reasonable costs, expenses, losses (including interest on overdue Taxation and any Tax Liability) and damages that may arise from the exercise by virtue the Seller of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Scheduleparagraph 3.
Appears in 1 contract
Samples: Share Purchase Agreement (Live Nation Entertainment, Inc.)
Conduct of Claims. 6.1. If a Buyer any relevant claim is made or a Group Company becomes aware of a Tax Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice any matter comes to the Seller notice of the Tax ClaimOfferor or the Company or any Subsidiary or other possible claimant for which or as a result of which the Covenantors may be liable under the Warranties or the Indemnities the Offeror or the Company or Subsidiary or claimant shall, as appropriate, within 28 days after the matter first comes to its notice give written notice thereof to the Covenantors' Representative provided always that any failure to give the giving of such requisite notice during that period shall not be prejudice the ability of the Offeror or the Company or any Subsidiary or other possible claimant to make a condition precedent claim and:-
(a) none of them shall make any admission of liability, agreement, settlement or compromise or otherwise take any action in relation thereto without the prior written consent of the Covenantors' Representative and shall at all times promptly give the Covenantors' Representative and their professional advisers all information and documents in its or the Company's or Subsidiary's control as reasonably requested from time to time;
(b) save as provided in paragraph 12(c), each of them will at all times permit the Covenantors' Representative, as appropriate, to take such action on their/its behalf to avoid, resist, appeal, compromise, defend, mitigate or otherwise deal with the claim or the liability the subject thereof or pursue any rights of the Company or any Subsidiary in respect thereof;
(c) paragraph 12(b) will not apply to any relevant claim which exceeds the maximum liability of the Seller under Covenantors (as set out in paragraph 5 of this Schedule.
6.2Schedule 2) or to any relevant claim (other than purely monetary disputes or claims) which could reasonably be expected to have a material adverse effect on the operation of the Business or the goodwill or reputation of the Business. If the Seller becomes aware In respect of a Tax Claimany such relevant claims to which this paragraph 12(c) applies, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3Offeror, the Buyers shall (Company or any Subsidiary will consult with the Covenantors' Representative and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice account of all reasonable representations and views in writing order to avoid, dispute, defend, resist, appeal appeal, compromise or compromise defend any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided such relevant claim. Provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve there is a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement conflict between the Seller provisions of this paragraph and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the SellerClause 4, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupClause 4 shall prevail.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Deed of Warranty and Indemnity (Insignia Esg Holdings Inc)
Conduct of Claims. 6.1. 4.1 If a Buyer or a Group Yorkshire or, after Closing, the Company becomes shall become aware of any Claim which will or may give rise to a Tax liability of CK Witco under Part B or Part C of this schedule ("Relevant Claim") Yorkshire shall, the Buyer shall or shall procure that the relevant Group Company shall within but not as a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition conditions precedent to the liability of the Seller CK Witco under this Schedule.
6.2. If the Seller becomes aware of a Tax Claimschedule, the Seller shall notify the Buyers in writing give notice thereof or procure that notice thereof is given as soon as reasonably practicable to CK Witco and in any event within 14 days of Yorkshire and 21 days of the Company becoming aware of the Relevant Claim.
4.2 Subject to paragraphs 4.5, 4.6 and 4.7, Yorkshire shall, and shall procure that the Company shall, take such action to appeal, protest against, mitigate, reduce, avoid, dispute, resist or compromise the Relevant claim and make available such documents, information and assistance in connection with the Relevant Claim as CK Witco may by written notice request provided that CK Witco shall indemnify and secure Yorkshire and the Buyers Company against all reasonable costs and expenses (including any Taxation or additional Taxation and including the cost of time of the management of Yorkshire or the Company which shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification been incurred, or suffered for the purpose purposes of this Paragraph 6.2.
6.3. Subject to paragraph 4) which Yorkshire or the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur Company incurs as a result of taking such action or providing such information and assistance, such reasonable costs and expenses to be paid in cleared, immediately available funds on or before the date five (including any additional liability to Tax).
6.4. Without prejudice to 5) Business Days after the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt date of written notice from Yorkshire of the Tax Claim from amount which CK Witco is required to pay or, if later, on the last Business Day before the date on which such reasonable costs and expenses are due for payment. If Yorkshire shall have served a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve written notice on CK Witco requesting CK Witco to provide such indemnity or security and CK Witco shall fail to provide the Buyers same within 30 days thereafter then CK Witco's rights under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days this paragraph 4 shall cease and Yorkshire and the Company shall be entitled to notify deal with the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability Relevant Claim on such terms as it may they shall in its their absolute discretion think fit without prejudice to their rights and remedies under this schedule.
4.3 Subject to paragraphs 4.5, 4.6 and 4.7 CK Witco may elect to have any action referred to in paragraph 4.2 conducted by CK Witco acting in the name of the Buyers’ rights under this ScheduleCompany but reporting to Yorkshire in which event the provisions of paragraph 4.4 shall apply.
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a In the event that any claim is made against the Seller and/or any Group Company becomes aware under any Transaction Agreement and the Purchaser and/or the Purchaser Nominee are/is included in or joined to that claim then:
(i) no admissions in relation to such third party claim shall be made by or on behalf of a Tax Claimthe Purchaser, the Buyer shall Purchaser Nominee or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller any other member of the Tax Claim, provided always that Purchaser's Group and the giving of such notice claim shall not be a condition precedent to compromised, disposed of or settled without the liability written consent of the Seller under this Schedule.Seller;
6.2. If the Seller becomes aware of a Tax Claim, (ii) the Seller shall notify the Buyers be entitled at its own expense and in its absolute discretion, by notice in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3Purchaser, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) to take such action as it shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise or contest such claim or liability (including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Purchaser or other member of the Purchaser's Group concerned and to have the conduct of any related proceedings, negotiations or appeals and in that connection the Purchaser shall give or cause to be given instructions to such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser's Group concerned but in accordance with the Seller's instructions;
(iii) the Purchaser shall, and the Purchaser shall procure any other members of the Purchaser's Group relevant to the claim shall, give to the Seller, subject to their being paid all reasonable costs and expenses and indemnified to their reasonable satisfaction against any liability or damages incurred thereby, all such information and assistance including access to premises and personnel, and the right to examine any assets, accounts, documents and records, as the Seller may reasonably request and which is not covered by notice in writing to avoid, dispute, defend, resist, appeal confidentiality obligations or compromise any Tax Claim constitutes attorney/client work product. SCHEDULE 3 PRINCIPAL SUBSIDIARY COMPANIES
1. Xxxxxxxxx Essar Limited
2. Xxxxxxxxx Essar Mobile Services Limited
3. Xxxxxxxxx Telecom East Limited
4. Fascel Limited
5. Aircel Digilink India Limited
6. Xxxxxxxxx Essar South Limited
7. Xxxxxxxxx Telecommunications (a “Disputed Tax Claim”Hong Kong) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first Limited
8. Xxxxxxxxx Global Communications Holdings Limited
9. BFKT (to the Buyers’ reasonable satisfactionThailand) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4Limited 10. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.Xxxxxxxxx CAT Wireless MultiMedia Limited
Appears in 1 contract
Samples: Share Purchase Agreement (Orascom Telecom Holding S.A.E.)
Conduct of Claims. 6.1. 5.1 If the Purchaser or the Company or the Subsidiary believe, acting reasonably, that there may be an issue which might give rise to a Buyer or a Group Company becomes aware Warranty Claim in respect of a Tax Claim, the Buyer Share Warranties:
5.1.1 subject to paragraph 5.2 the Purchaser shall (or shall procure that the relevant Group Company shall within a reasonable time give notice to or the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Subsidiary concerned shall) as soon as reasonably practicable and give written notice to the Buyers shall be deemed to have given the Seller notice Warrantors of the Tax matter and shall consult with the Warrantors with respect to such matter provided that a failure to comply with this paragraph 5.1.1 shall not preclude the Purchaser from bringing a Warranty Claim on receipt of against the Warrantors provided that such notification for Claim is made within the purpose time scales in paragraph 2.4 of this Paragraph 6.2.Schedule;
6.3. Subject 5.1.2 subject to paragraph 5.2 the following provisions of this Paragraph 6.3, the Buyers Purchaser shall (and where relevant, shall procure that the Company or the Subsidiary concerned shall) provide to the Warrantors and their advisers reasonable access on reasonable notice to premises and personnel and to relevant assets, documents and records within the Purchaser's Group Companies for the purposes of investigating the matter and enabling the Warrantors to take the action referred to in paragraph 5.1.4;
5.1.3 the Warrantors (at their own cost) may take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 5.1.2;
5.1.4 subject to paragraphs 5.1.5, 5.2 and 5.3, the Purchaser shall (and shall procure that the Company or the Subsidiary shall) take such action as the Seller Warrantors may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, mitigate, compromise, defend or appeal against any Warranty Claim and any adjudication with respect thereto which shall include (without limitation) the Company or compromise the Subsidiary applying to postpone (so far as legally possible) the payment of any Tax Claim (a “Disputed Tax Claim”) or any matter relating taxation; and
5.1.5 the Warrantors shall indemnify and secure the Purchaser and the Company and the Subsidiary against all losses, damages and expenses reasonably incurred by them in connection with paragraph 5.1.4 above and reimburse to the Disputed Tax Claim but only provided that Purchaser and the Seller shall first (to Company and the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required Subsidiary all out-of-pocket expenses reasonably incurred by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)them in complying with their obligations under this paragraph 5.
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers 5.2 The Purchaser shall not be obliged required to take provide any information or procure access to premises, personnel, assets, documents or records which its lawyers have properly considered and confirmed are legally privileged or which relate to the taking of any Purchaser's view on whether an action under Paragraph 6.3 against the Warrantors in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Warranty Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be successful.
5.3 The Purchaser shall not be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against (or procure that any person who action is at taken) which is (in its reasonable opinion), materially prejudicial to the time in question either an employee goodwill of or director of any member otherwise materially detrimental to the business or interests of the Buyers’ Tax Purchaser, the Purchaser's Group, the Company or any company that is at the time in question a member of the Buyers’ Tax GroupSubsidiary.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If the Company receives a Buyer or a Group Company becomes aware of a Tax ClaimClaim for Taxation, the Buyer shall or shall as soon as reasonably possible but no later than 10 business days after receipt procure that the relevant Group Company shall within a reasonable time as soon as reasonably practicable give notice thereof to the Seller of the Tax Claim, Sellers provided always that the giving delivery of such notice shall is not be a condition precedent to the liability of the Seller Sellers under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim4.2 Subject to paragraph 4.3 and 4.4, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, Buyer shall procure that the relevant Group Companies shall) take Company takes such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, compromise or compromise contest any Tax Claim for Taxation as the Sellers may reasonably request provided that:
(a “Disputed Tax Claim”a) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers Buyer shall not be obliged to take procure any such action unless the Sellers have indemnified and secured the Buyer and the Company to their reasonable satisfaction against any liabilities, costs or procure expenses (including additional Taxation) which may be incurred thereby;
(b) the taking Sellers shall not be entitled to require the Company to delegate the conduct of such action to itself of any action under Paragraph 6.3 in respect professional agent or advisor of any Tax Claim:the Sellers;
(ac) neither the Buyer nor the Company shall be obliged to take any action requested by the extent that it would involve a Group Sellers which could reasonably be said to be frivolous or vexatious or which could adversely affect their future Taxation position.
4.3 The Company shall not be obliged to comply with any request of the Sellers which involves contesting any Disputed Tax Claim for Taxation before any court or other appellate body, body unless in the Sellers obtains the written opinion of tax counsel Leading Tax Counsel that such contest will, on the balance of appropriate relevant experience appointed by agreement between the Seller probabilities, be successful.
4.4 The Buyer and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to shall be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company free to take any such action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it they may in its their absolute discretion think fit and without prejudice to their rights and remedies under this Schedule if within 28 days of service of the notice under paragraph 4.1 the Sellers fail to notify the Buyer of their intention to resist such Taxation or fail within that period to give the indemnity and security referred to in paragraph 4.2(a).
4.5 Paragraph 4.2 shall not apply if any of the Buyers’ rights under this ScheduleSellers or the Company has committed acts or omissions which constitute or are alleged to constitute fraud, wilful default or negligent conduct.
Appears in 1 contract
Conduct of Claims. 6.1. 8.1 If a the Buyer or a Group the Company becomes aware of a Tax ClaimClaim that could give rise to a liability of the Sellers under paragraph 2, the Buyer shall or shall procure that the relevant Group Company shall shall, as soon as reasonably practicable and in any event within 15 Business Days of the Buyer or the Company becoming so aware (and, in the event that the Company receives a Tax Claim in relation to which an appeal may be made or other action taken within a reasonable time specified period of time, the Buyer shall give written notice to the Seller prior to the date that falls ten Business Days before the expiry of the specified period), give written notice to the Sellers of the Tax ClaimClaim containing, to the extent reasonably practicable, a description of such claim and the estimated total amount of the claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this ScheduleSellers.
6.2. 8.2 If the Seller becomes Sellers should become aware of a Tax ClaimClaim for whatever reason, the Seller shall notify Sellers give written notice to the Buyers in writing Buyer as soon as reasonably practicable containing, to the extent reasonably practicable, a description of such claim and the Buyers estimated total amount of the claim and the Buyer shall be deemed to have given the Seller Sellers notice of the Tax Claim on receipt of such notification for the purpose purposes of this Paragraph 6.2paragraph 8.
6.3. 8.3 Subject to the following provisions of this Paragraph 6.3paragraph 8, the Buyers Buyer shall (and where relevant, shall procure that the relevant Group Companies Company shall) take such action as the Seller Sellers may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller Sellers shall first (to the Buyers’ Buyer's reasonable satisfaction) indemnify the Buyers Buyer and/or the Group Companies Company (as required by the BuyersBuyer) against any losses, damages, costs or expenses which that it may suffer or incur as a result of taking such this action (including any additional liability to Tax).
6.4. 8.4 Without prejudice to the liability of the Seller Sellers under this Schedule, the Buyers Buyer shall not be obliged to take or procure the taking of any action under Paragraph 6.3 paragraph 8.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group the Company contesting any Disputed Tax Claim before any court or other appellate body, body (excluding the Taxation Authority that has made the Disputed Tax Claim) unless in the written opinion of tax counsel Tax Counsel of appropriate relevant experience appointed by agreement between the Seller Sellers and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a would be reasonable course of action given in all the circumstances including having regard to the amounts involved, the likelihood of success; orsuccess and any future Tax Liability or other liability of the Company or the Buyer's Tax Group to the extent that such liability is not or may not be recoverable under paragraph 2;
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful wilful default by or of the Seller Sellers at any time or by or of a Group the Company prior before Completion or if the Buyer has reasonable grounds to the Closing; orso believe;
(c) should the SellerSellers, following receipt of written notice of the Tax Claim from a the Buyer in accordance with Paragraph 6.1paragraph 8.1:
(i) fail within fifteen (15) Business Days (or ten Business Days in a case where there is a time limit for an appeal that has been notified to the Sellers) to serve notice on the Buyers Buyer under Paragraph 6.3; orparagraph 8.3;
(ii) fail within fifteen (15) ten Business Days to notify the Buyers Buyer in writing of any further action to be taken by a the Buyer or a Group the Company under Paragraph 6.3 paragraph 8.3 where a the Buyer at any time seeks instructions from the SellerSellers;
(iii) fail to adequately indemnify the Buyer and/or the Company (as appropriate) under paragraph 8.3; or
(iv) fail to further indemnify the Buyer to the reasonable satisfaction of the Buyer in the event that the indemnity previously provided becomes, or is likely to become, in the reasonable opinion of the Buyer insufficient;
(d) should the Sellers each:
(i) become insolvent and corporate action or other steps are taken or legal proceedings are started for its winding up, dissolution or administration or for the appointment of a receiver, administrator, trustee or similar officer of the Sellers or any of its assets; or
(ii) be unable to pay its debts as they fall due, start negotiations with a creditor with a view to the general readjustment or rescheduling of its indebtedness or make a general assignment for the benefit of, or a composition with, its creditors;
(e) if, in the Buyers’ Buyer's reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 Sellers under paragraph 8.3 is likely to:
(i) give rise to a liability of the Buyer or the Company to Tax that is not adequately covered by any indemnity given under this paragraph 8;
(ii) affect materially and adversely the liability of a the Buyer or a Group the Company to Tax or the business or financial interests of any of them or of any person connected with any of them (in each case) in a material respect or is or contrary to the legal obligations of any of them or of any person connected with any of them; or
(eiii) affect adversely the relationship of the Buyer or the Company with any Tax Authority;
(f) in respect of a liability that falls within paragraph 2.2;
(g) if a Group the Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, paid unless payment has previously been made by the Seller Sellers to a the Buyer of an amount equal to such that Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. 8.5 If Paragraph 6.3 paragraph 8.3 does not apply by virtue of any provision in Paragraph 6.4paragraph 8.4, the relevant Buyer or Group the Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion acting in good faith think fit without prejudice to any of the Buyers’ Buyer's rights under this Schedule.
Appears in 1 contract
Samples: Share Purchase Agreement (Aegean Marine Petroleum Network Inc.)
Conduct of Claims. 6.14.1. If a the Buyer or a Group the Company becomes aware of a Tax Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this ScheduleSeller.
6.24.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers Buyer in writing as soon as reasonably practicable and the Buyers Buyer shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose purposes of this Paragraph 6.2paragraph 4.
6.34.3. Subject to the following provisions of this Paragraph 6.3paragraph 4:
(a) solely in respect of a Tax Claim that relates to a liability under paragraph 1.7, the Buyers Seller shall be appointed the Company’s agent to have conduct of the Company’s response to the Tax Claim (subject to the Seller keeping the Buyer properly informed as to any such response) and, subject to that, the Buyer shall (and where relevant, shall procure that the relevant Group Companies Company shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall (despite its role as an agent) itself bear any losses, damages, costs or expenses which it may suffer or incur in conducting the Company’s response to the Tax Claim (including any additional liability to Tax) and shall first (to the Buyer's reasonable satisfaction) indemnify and secure the Buyer and/or the Company (as required by the Buyer) against any losses, damages, costs or expenses which the Buyer and/or the Company may suffer or incur as a result of taking such action (including any additional liability to Tax); and
(b) in respect of any other Tax Claim, the Buyer shall (and where relevant, shall procure that the Company shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ Buyer's reasonable satisfaction) indemnify and secure the Buyers Buyer and/or the Group Companies Company (as required by the BuyersBuyer) against any losses, damages, costs or expenses which it the Buyer and/or the Company may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.44.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers Seller shall not take, and the Buyer shall not be obliged to take or procure the taking of of, any action under Paragraph 6.3 paragraph 4.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group the Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a would be reasonable course of action given in all the circumstances including the likelihood of successcircumstances; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful wilful default by or of the Seller at any time or by or of a Group the Company prior to Closing or if the ClosingBuyer has reasonable grounds to so believe; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a the Buyer in accordance with Paragraph 6.1paragraph 4.1:
(i) fail within fifteen (15) 15 Business Days to serve notice on the Buyers Buyer under Paragraph 6.3paragraph 4.3; or
(ii) fail within fifteen (15) 15 Business Days to notify the Buyers Buyer in writing of any further action to be taken by a the Buyer or a Group the Company under Paragraph 6.3 paragraph 4.3 where a the Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ Buyer's reasonable opinion, the action taken or requested by the Seller pursuant to Paragraph 6.3 paragraph 4.3 is likely to affect materially and adversely the liability of a the Buyer or a Group the Company to Tax or the business or financial interests of any of them or of any person connected with any of them or is contrary to the legal obligations of any of them or of any person connected with any of them; or
(e) in respect of a liability which falls within paragraph 1.3; or
(f) if a Group the Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and has been lent by the Seller to the Buyer (repayable as soon as the relevant Tax Authority repays the Taxation in the event of a successful appeal or by offset against the Seller’s liability under this Schedule in respect of itthe Taxation in the event of an unsuccessful appeal); or
(fg) that requires a Group the Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Buyer’s Tax Group, or any company that is at the time in question a member of the Buyers’ Buyer’s Tax Group.
6.54.5. If Paragraph 6.3 paragraph 4.3 does not apply by virtue of any provision in Paragraph 6.4paragraph 4.4, the relevant Buyer or Group the Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ Buyer's rights under this Schedule.
4.6. Neither the Buyer nor the Company shall be subject to any claim by or liability to the Seller for non-compliance with any of the foregoing provisions of this paragraph 4 if the Buyer or the Company has acted in good faith in accordance with the instructions of the Seller.
Appears in 1 contract
Samples: Share Purchase Agreement (GAIN Capital Holdings, Inc.)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer This paragraph shall or shall procure that the relevant Group Company shall within a reasonable time give notice apply to the Seller of the Tax Claimconduct, provided always that the giving of such notice shall not be by a condition precedent to the liability of the Seller Party from whom an indemnity is sought under this Schedule.
6.2, of claims made by a third person against a party having (or claiming to have) the benefit of the indemnity. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the party giving the indemnity is referred to as the “Indemnifier”. If the Seller becomes aware of a Tax Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Schedule (“Claim”), the Seller Beneficiary shall notify the Buyers give notice in writing to the Indemnifier as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice in any event within ten (10) Working Days of receipt of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3same. Subject to paragraphs 34.4 and 34.5 below, on the following provisions giving of this Paragraph 6.3a notice by the Beneficiary pursuant to paragraph 34.2 above, where it appears that the Beneficiary is or may be entitled to indemnification from the Indemnifier in respect of all (but not part only) of the liability arising out of the Claim, the Buyers Indemnifier shall (subject to providing the Beneficiary with a secured indemnity to its reasonable satisfaction against all costs and where relevant, shall procure expenses that it may incur by reason of such action) be entitled to dispute the relevant Group Companies shall) Claim in the name of the Beneficiary at the Indemnifier’s own expense and take such action as the Seller may reasonably request by notice in writing to avoidconduct of any defence, dispute, defend, resist, compromise or appeal or compromise of the Claim and of any Tax Claim (a “Disputed Tax Claim”) or any matter incidental negotiations relating to the Disputed Tax Claim. If the Indemnifier does elect to conduct the Claim, the Beneficiary shall give the Indemnifier all reasonable cooperation, access and assistance for the purposes of such Claim but only provided that and, subject to paragraph 34.5 below, the Seller Beneficiary shall first (not make any admission which could be prejudicial to the Buyers’ reasonable satisfaction) indemnify defence or settlement of the Buyers and/or Claim without the Group Companies (as required prior written consent of the Indemnifier. With respect to any Claim conducted by the Buyers) against any losses, damages, costs or expenses which Indemnifier pursuant to paragraph 34.3 above: the Indemnifier shall keep the Beneficiary fully informed and consult with it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability about material elements of the Seller under this Schedule, conduct of the Buyers Claim; the Indemnifier shall not bring the name of the Beneficiary into disrepute; the Indemnifier shall not pay or settle such Claim without the prior written consent of the Beneficiary, such consent not to be obliged to take unreasonably withheld or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller delayed; and the Buyers or in default of agreement appointed by Indemnifier shall conduct the President for the time being Claim with all due diligence. The Beneficiary shall be entitled to have conduct of the Institute of Chartered Accountants in England Claim and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior shall be free to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy pay or settle the Tax Liability any Claim on such terms as it may in its absolute discretion think thinks fit and without prejudice to any its rights and remedies under this Agreement if: the Indemnifier is not entitled to take conduct of the Buyers’ rights Claim in accordance with paragraph 34.3 above; the Indemnifier fails to notify the Beneficiary in writing of its intention to take conduct of the relevant Claim within ten (10) Working Days of the notice from the Beneficiary under this Scheduleparagraph 34.2 above or if the Indemnifier notifies the Beneficiary in writing that it does not intend to take conduct of the Claim; or the Indemnifier fails to comply in any material respect with the provisions of paragraph 34.4 above.
Appears in 1 contract
Samples: Order Form and Call Off Terms
Conduct of Claims. 6.1. 8.1 If a Buyer or a any member of the Company’s Group Company becomes aware of any claim or potential claim against it by a Tax Claimthird party which is reasonably likely to lead to a Claim (such third party claim, a “Third Party Action”), the Buyer shall or shall procure that Company shall, as soon as reasonably practicable, give the relevant Group Company shall within a reasonable time give Subscriber notice to the Seller in writing of the Tax Claim, provided always that the giving of Third Party Action (but such notice shall not be a condition precedent to the liability of the Seller under this ScheduleSubscriber).
6.2. If 8.2 In the Seller becomes aware case of a Tax ClaimThird Party Action that, if successful, would represent solely an Excluded Liability (“Excluded Liability Action”), and on the basis that the Subscriber shall indemnify the Company and each relevant member of the Company’s Group from and against all Losses suffered or incurred by it in the performance of this paragraph 8.2 and/or paragraph 8.4, the Seller shall notify the Buyers in writing as soon as reasonably practicable Company shall, and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the each relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability member of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax ClaimCompany’s Group shall:
(a) to make no admission of liability or settle or compromise the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in Excluded Liability Action without prior consultation with the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successSubscriber; orand
(b) where if so requested in writing by the Tax Claim or action derives Subscriber within [**] Business Days from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or the date on which the Company first notified it of the Seller at any time or by or of a Group Company prior Excluded Liability Action, and to the Closing; or
(c) should extent permitted by applicable law, allow the Seller, following receipt of written notice Subscriber to assume the defence of the Tax Claim Excluded Liability Action.
8.3 The obligations of the Company under paragraphs 8.2 and 8.4 shall not apply to an Excluded Liability Action if the Subscriber fails to give the Company notice in writing of its intention to exercise its rights under paragraph 8.2 within [**] Business Days from a Buyer the date on which the Company first notified it of the Excluded Liability Action.
8.4 If the Subscriber assumes the defence of an Excluded Liability Action in accordance with Paragraph 6.1paragraph 8.2:
(a) the Company shall:
(i) fail as soon as reasonably possible but in any event no later than within fifteen (15) [**] Business Days following the Subscriber’s request, provide the Subscriber, or any relevant member of the Subscriber’s Group, with a power of attorney in such form as is reasonably required by the Subscriber, duly authorising the Subscriber or any relevant member of the Subscriber’s Group to serve notice act on behalf of the Buyers under Paragraph 6.3Company and to defend its interests in the course of the Excluded Liability Action; orand
(ii) fail within fifteen for the duration of the Excluded Liability Action, provide the Subscriber and its Agents with such information and documentation relating to the Excluded Liability Action as they may reasonably require;
(15b) Business Days to notify the Buyers Subscriber shall not settle or compromise such Excluded Liability Action on terms that impose any restriction or obligation on any member of the Company’s Group other than the payment of monetary liability;
(c) the Subscriber shall keep the Company informed of all material developments in writing the conduct of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; orExcluded Liability Action;
(d) if, the Company shall have the right to participate in the Buyers’ reasonable opiniondefence and to employ counsel, at its own expense, separate from the action requested counsel employed by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely Subscriber or any relevant member of the liability Subscriber’s Group, it being understood that the Subscriber, or any relevant member of a Buyer or a Group Company to Tax or the business or financial interests of any of themSubscriber’s Group, shall control such defence; orand
(e) if a competent court or other tribunal considering such Excluded Liability Action issues a judgment or award against the Company or the relevant member of the Company’s Group and such judgment or award enters into force, the Subscriber shall (save to the extent the Subscriber has already paid the amount of such judgment or award to the Company under any Indemnity) discharge such judgment or award on behalf of the Company within the period specified therein. The Subscriber shall be entitled to appeal from or otherwise challenge any such court judgment or award by using all means available to the Subscriber in accordance with applicable law. If the Subscriber or other member of the Subscriber’s Group agrees to any settlement of any Excluded Liability Action, the Subscriber shall discharge the amount of any liability under such settlement in full.
8.5 Subject to paragraph 8.6, in the case of a Third Party Action that, if successful, would represent any liability other than solely an Excluded Liability (“Other Third Party Action”), and on the basis that the Subscriber shall indemnify the Company and each relevant member of the Company’s Group from and against all Losses suffered or incurred by it in the performance of this paragraph 8.5, the Company shall, and shall procure that each relevant member of the Company’s Group shall:
(a) make no admission of liability or settle or compromise the Other Third Party Action without the prior written consent of the Subscriber (such consent not to be unreasonably withheld or delayed);
(b) employ a professional adviser acceptable to the Subscriber (acting reasonably) in relation to the conduct of such Other Third Party Action;
(c) in a timely manner inform the Subscriber of each material development in the conduct of the Other Third Party Action; and
(d) take such reasonable action as the Subscriber may (by notice given in a timely manner) reasonably require in order to avoid, defend, dispute, mitigate, appeal, settle or compromise the Other Third Party Action.
8.6 The Company shall have no obligation under paragraph 8.5 if, in the reasonable opinion of the Company, the performance of such obligation would require the Company or another member of the Company’s Group to do or omit to do any act or thing which act or omission that would be required or is likely to appeal against any assessment be materially adversely prejudicial to the business of NewCo or demand for Tax where it is to the business of the Company’s Group taken as a requirement for such an appeal whole.
8.7 In the event that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer Company breaches any of an amount equal to such Taxation and its obligations under this paragraph 8 in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4Third Party Action, the relevant Buyer or Group Subscriber shall not be liable for any Losses in respect of such Third Party Action to the extent (but only to the extent) such Losses are greater than they would otherwise be by reason of such breach, and the Company (as the case may be) may satisfy or settle the Tax Liability on shall have no other liability in respect of such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedulebreach.
Appears in 1 contract
Samples: Framework Agreement (Yandex N.V.)
Conduct of Claims. 6.1. 4.1 If a Buyer the Purchaser or a any Target Group Company becomes member become aware of any Claim for Tax which gives or may give rise to a Tax Claim, the Buyer shall Purchaser shall, or shall procure that the relevant a Target Group Company shall within a reasonable time give notice to the Seller of the Tax Claimmember shall, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as is reasonably practicable (and in any event, in the Buyers shall be deemed case of the receipt of a Claim for Tax consisting of any assessment or demand for Tax for which the time for response or appeal is limited, not less than five clear Business Days prior to have given the Seller day on which the time for response or appeal expires) give written notice of the Claim for Tax Claim on receipt of such notification for to the purpose of this Paragraph 6.2Vendor.
6.3. Subject to 4.2 If the following provisions of this Paragraph 6.3Vendor in writing reasonably requires, the Buyers shall (and where relevantPurchaser shall, or shall procure that a Target Group member shall, supply the Vendor with such available and relevant Group Companies shall) details, documentation, correspondence and information and shall take such action as the Seller Vendor may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, compromise, defend or appeal against the Claim for Tax and any adjudication in respect of the Claim for Tax provided that the Vendor shall first indemnify and secure the relevant Target Group member and the Purchaser to the reasonable satisfaction of the Purchaser against all reasonable costs and expenses which may be incurred in relation to the same.
4.3 The Vendor shall have the right to have any action mentioned in paragraph 4.2 conducted by their nominated professional advisers provided that:
4.3.1 the appointment of such professional advisers shall be subject to the approval of the Purchaser (such approval not to be unreasonably withheld or compromise delayed and shall be deemed to be given in the event that the Purchaser does not within 15 days of request give a fully reasoned, written response to a request for approval by the Vendor);
4.3.2 the Vendor shall procure that the Purchaser is kept fully informed of the progress of the relevant action and provided with copies of all relevant correspondence and documents sent by and to the Vendor and their professional advisers; and
4.3.3 the Vendor shall procure that any reasonable comments made by the Purchaser in relation to the relevant action are adopted by the Vendor and their professional advisers.
4.4 If the Vendor does not request the Purchaser or any Target Group member to take action pursuant to paragraph 4.2 of this schedule 3 part 4 or if the Vendor fails to indemnify the Purchaser or the Target Group member concerned as provided in that paragraph within fourteen days of the said written notice to the Vendor, the Purchaser or the relevant Target Group member shall be free to pay or settle the Claim for Tax on such terms as it may in its absolute discretion think fit.
4.5 If it is alleged by any Tax Claim Authority in writing that any Vendor (a “Disputed Tax Claim”at any time) or any matter Target Group member (prior to Completion) has committed any act or omission constituting fraudulent conduct relating to Tax paragraph 4.3 of this schedule 3 part 4 shall not apply and the Disputed Tax Claim but only provided Vendor shall cease to have any right under that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)paragraph.
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers 4.6 The Purchaser shall not be obliged to take or procure the taking of any the following action under Paragraph 6.3 in respect pursuant to paragraph 4.2 of this schedule 3 part 4:
4.6.1 agreeing to the settlement or compromise of any Claim for Tax Claim:
(a) or any proposal for the same which is likely to affect the amount involved or future liability to Tax of the Purchaser or any Target Group member unless the Vendor indemnifies and secures the Purchaser or the relevant Target Group member to the extent that it would involve a Group Company Purchaser’s reasonable satisfaction against any such future liability to Tax;
4.6.2 contesting any Disputed Claim for Tax Claim before any court or other appellate bodybody (excluding the General Commissioners of Inland Revenue, the Special Commissioners of Inland Revenue or the Value Added Tax Tribunal in the UK and any equivalent of any such body outside the UK) unless in at the sole expense of the Vendor, the Vendor obtains the written opinion of tax Tax counsel of appropriate at least 10 years call after disclosure of all relevant experience appointed by agreement between the Seller information and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given documents having regard to all the circumstances including that on the likelihood balance of success; orprobabilities the actions will succeed;
(b) where the Tax Claim or action derives from or arises out of or is in connection 4.6.3 complying with any dishonest or fraudulent act or omission or willful default by or unreasonable instruction of the Seller at Vendor or to taking any time action or by procuring the taking of any action which it acting reasonably considers may be onerous or of a Group Company prior prejudicial to the Closing; orPurchaser or to any Target Group member;
(c) should the Seller, following receipt of written notice 4.6.4 any action whatsoever requested by any agent or representative of the Tax Claim from a Buyer Vendor (other than the professional advisors appointed in accordance with Paragraph 6.1:
(iparagraph 4.3 of this schedule 3 part 4) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers including, without limitation, any receiver, administrator or trustee in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupbankruptcy.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 7.1 If a Buyer the Purchaser or a Group the Company becomes shall become aware of any Claim which is likely to give rise to a liability on the Warrantors under this Tax ClaimDeed, the Buyer Purchaser shall give notice of or procure that notice of is given as soon as reasonably practicable to the Warrantors.
7.2 As regards any Claim and subject to the provisions of clause 7.3 the Purchaser shall take or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller Warrantors may by written notice given to the Purchaser reasonably request by notice in writing to avoid, cause the Claim to be withdrawn or to dispute, defend, resist, appeal against, compromise or compromise defend the Claim and any determination or adjudication in respect thereof or to apply to postpone (so far as legally possible) the payment of any Tax Claim (a “Disputed Tax Claim”) or pending the determination of any matter relating appeal but subject to the Disputed Tax Claim but only provided that Purchaser and the Seller shall first (Company being indemnified to the Buyers’ their reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required satisfaction by the Buyers) Warrantors against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action all losses (including any additional liability Taxation Liability), interest, costs, damages and expenses which may be incurred by the Purchaser or the Company, and Provided that:
7.2.1 any request made by the Warrantors pursuant to Tax).
6.4. Without this clause 7.2 shall be made within a reasonable time of receipt by the Warrantors of any notice given by the Purchaser to the Warrantors in accordance with clause 7.1 and if, on the expiry of a period of 21 days commencing on the date of receipt by the Warrantors of such notice, the Warrantors shall not have given to the Purchaser notice of their intentions in respect of the Claim or shall not have provided satisfactory indemnities in accordance with this clause 7.2 the Purchaser and the Company shall be entitled to satisfy or settle or deal with the Claim on such terms as they shall in their discretion reasonably think fit but without prejudice to the liability of the Seller their rights and remedies under this Schedule, Tax Deed;
7.2.2 the Buyers Purchaser and the Company shall not be obliged to take or procure comply with any request of the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company Warrantors which involves contesting any Disputed Tax Claim assessment for Taxation before any court or any other appellate body, body (other than the General or Special Commissioners of HM Revenue &Customs or a VAT Tribunal) unless they have been advised in the written opinion of writing by tax counsel of appropriate relevant experience appointed at least 5 years call instructed by agreement between the Seller Purchaser and the Buyers or Warrantors at the expense of the Warrantors that an appeal against the assessment for Taxation in default question will, on the balance of agreement appointed probabilities, be won by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; Purchaser or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle , the Tax Liability on such terms as Company;
7.2.3 neither the Purchaser nor the Company shall be obliged to take any action which it may reasonably considers to be materially prejudicial to the Taxation affairs of any company in its absolute discretion think fit without prejudice to any the group of companies of which the Buyers’ rights under this SchedulePurchaser is for the time being a member.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Top Image Systems LTD)
Conduct of Claims. 6.1. 10.1 If a the Buyer or any of the Broadcast Group Companies receives a Group Company becomes aware of Tax Assessment which relates in whole or in part to Taxation for which the Sellers may be liable under this Deed or any other notification from a Tax Authority which may give rise to a Tax Claim, the Buyer shall immediately give written notice of the Tax Assessment or other matter to the Sellers. The Buyer shall, or shall procure that the relevant Broadcast Group Company or Companies shall, take such action and give such information and assistance in connection with the affairs of the relevant Broadcast Group Company or Companies as the Sellers may reasonably request to resist, appeal, dispute, avoid or compromise the Tax Assessment. Such information and assistance shall include, without limitation, providing reasonable access to relevant documentation and records and permitting the copying of such documentation and records.
10.2 For the avoidance of doubt, the actions which the Sellers may reasonably request under this clause 10 shall include (without limitation) the procuring of any Broadcast Group Company to apply to postpone (so far as legally possible) the payment of any Taxation and/or allowing either or both of the Sellers to take on or take over at its own expense the conduct of all or any proceedings of whatsoever nature arising in connection with the Tax Claim in question and, if the Seller(s) take on or take over the conduct of proceedings, the Buyer shall provide, and shall procure that any Broadcast Group Company shall within provide, such information and assistance as the Seller(s) may reasonably require in connection with the preparation for and conduct of those proceedings.
10.3 If either or both of the Sellers elect to have conduct of a reasonable time give notice claim in accordance with the provisions set out above:
10.3.1 the Buyer shall be kept informed of all material matters pertaining thereto and steps proposed to be taken by the Seller(s) and shall be entitled to receive copies of all material correspondence in connection with the claim in question;
10.3.2 the Sellers shall provide the Buyer with drafts of material correspondence in relation to the Seller Tax Assessment in question and shall provide the Buyer with an opportunity to comment thereon. The Sellers shall not unreasonably refuse to accept any such comments;
10.3.3 the Sellers shall not make any settlement or compromise of any Taxation Assessment unless it has first notified the Buyer and any Broadcast Group Company of the Tax Claim, provided always that the giving terms of such notice proposed settlement or compromise and the Buyer has given its consent in writing to such settlement or compromise (such consent not to be unreasonably withheld or delayed) but if such consent is refused the Sellers’ liability under the Tax Deed in relation to that Taxation Assessment shall not be limited to a condition precedent maximum of the amount for which the Sellers would have been liable if such consent had been forthcoming.
10.4 In the event that neither of the Sellers has requested in writing that it be allowed to take on or take over the conduct of all or any proceedings pursuant to clause 10.2 in relation to the liability of Tax Assessment or notification referred to in clause 10.1:
10.4.1 the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax ClaimBuyer shall, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that any Broadcast Group Company shall, provide the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result Sellers with copies of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking all correspondence entered into and notes of any action under Paragraph 6.3 in respect of material conversations or meetings with any Tax Claim:
(a) Taxation Authority to the extent that it would involve a Group Company contesting such correspondence or notes relate to the Tax Assessment in question;
10.4.2 no material written communication shall be forwarded to any Disputed Taxation Authority in relation to that Tax Claim before any court Assessment without the prior written approval of the Sellers (such approval not to be unreasonably withheld or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers delayed) provided that if no such approval or in default of agreement appointed notice that approval is to be withheld is received by the President for Buyer within 10 Business Days of request by the time being of Buyer, the Institute of Chartered Accountants in England and Wales upon the application of either Buyer shall be entitled to forward such communication to any Taxation Authority;
10.4.3 the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Broadcast Group Company (as the case may be) may satisfy shall not be at liberty without reference to the Sellers to admit, compromise (consent to which shall not be unreasonably withheld by the Sellers) or settle otherwise deal with any Tax Assessment unless either of the Sellers serves a notice on the Buyer to the effect that it considers that the Tax Liability Assessment should no longer be resisted provided that if neither of the Sellers serve such a notice on such terms the Buyer or on any Broadcast Group Company within 20 Business Days of receipt of written notice from the Buyer or any Broadcast Group Company that it intends to admit, compromise, or otherwise deal with the Tax Assessment, the Buyer or any member of the Broadcast Group may admit, compromise or otherwise deal with the Tax Assessment as it the Buyer or Broadcast Group Company may in its absolute discretion think fit without prejudice fit.
10.4.4 For the purposes of clause 10.4.3, the Sellers shall act reasonably in refusing to any consent to a claim being admitted or compromised by the Buyer if either of the BuyersSellers has instructed leading Tax Counsel of at least ten years’ rights under this Schedulecall (at the Sellers’ expense) and has been advised by such Counsel that the chances of success are greater than the chances of failure if the Tax Assessment is resisted further and either or both of the Sellers then elect to have conduct of such claim, complying in relation to such conduct with the obligations set out in clauses 10.2 and 10.3.
Appears in 1 contract
Conduct of Claims. 6.12.1. If a The Buyer shall as soon as reasonably practicable notify the Sellers in writing of any Claim for Taxation which comes to its notice whereby it appears that the Sellers are or a Group Company becomes aware of a Tax Claim, may become liable to pay the Buyer shall or shall procure that the relevant Group Company shall within in respect of which a reasonable time give notice to the Seller of claim under the Tax Claim, Warranties may be made provided always that the giving of such notice shall is not be a condition precedent to the liability of the Seller Sellers under this Schedulethe Tax Warranties.
6.22.2. If the Seller becomes aware of The Buyer shall ensure that a Tax ClaimClaim for Taxation to which paragraph 2.1 applies, the Seller shall notify the Buyers in writing as soon is, so far as reasonably practicable practicable, dealt with separately from claims to which it does not apply.
2.3. Provided that the Sellers indemnify the Group Company and the Buyers shall be deemed Buyer to have given the Seller notice reasonable satisfaction of the Buyer against all losses, costs, damages and expenses (including interest on overdue Taxation) which may be incurred thereby the Buyer will procure that the Group Company, at the Sellers’ cost and expense, take such action and gives such information and assistance in connection with its Taxation affairs as the Sellers may reasonably and promptly request to dispute, appeal against, settle or compromise any Claim for Taxation in respect of which a claim may be made for breach of any Tax Claim Warranties but excluding allowing the Sellers to undertake the conduct of the dispute with the relevant Taxation Authority.
2.4. The Buyer, on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevantnotice in writing, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without without prejudice to the liability generality of the Seller under this Scheduleforegoing) that the Sellers (and their advisers) are, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is within a reasonable course of action time, given reasonable access to all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or relevant documents, records and personnel of a Group Company prior and the Buyer and their advisers to enable the Closing; orSellers promptly and effectively to evaluate the dispute and enforce any of their rights under this paragraph 2.
(c) should 2.5. In connection with the Seller, following receipt conduct of written notice of any dispute relating to a Claim for Taxation to which the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on Warranties applies the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy shall keep the Sellers informed of all material relevant matters and shall promptly forward or settle procure to be forwarded copies of all material correspondence and other written communications pertaining thereto.
2.6. The Buyer will not be required to take or procure that each Group Company will take any action mentioned in paragraph 2.3;
2.6.1. which it reasonably considers to be materially prejudicial to the Tax Liability business or Taxation affairs of a Group Company or the Buyer or any company in the same group as the Buyer; or
2.6.2. which involves contesting a Claim for Taxation beyond the first appellate body (excluding the Taxation Authority which has made the Claim) in the jurisdiction concerned unless the Sellers obtains (at the Sellers’ cost and expense) the opinion of tax counsel of at least 10 years’ call that it is reasonable to make such an appeal.
2.7. If the Sellers fail within 15 Business Days of the Buyer giving notice requiring the Sellers to do so to inform the Buyer of any action which the Sellers wish the Buyer to procure a Group Company to take under paragraph 2.5 the Buyer will be entitled to procure that the Group Company settles or compromises any Claim for Taxation on such terms as it may determines in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedulediscretion.
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer 10.1 The Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and after it or any member of the Buyers shall be deemed Purchaser Group becomes aware of a Claim or any matter or circumstance that will or may give rise to have given a Claim, give written notice to the Seller notice ("Claim Notice"). The Claim Notice must contain all the details of such Claim, including the Purchaser's estimate of the Tax amount of the Claim, an indication as to whether any insurance cover or third party recourse would be available in respect of the Claim as well as any other information reasonably necessary to enable the Seller to assess the merits of the Claim.
10.2 If the Purchaser fails to notify the Seller within 45 Business Days after it or the relevant member of the Purchaser Group becomes aware of a Claim or any matter or circumstance that will or may give rise to a Claim as set out in Clause 10.1, the Seller shall not be liable to the Purchaser for the Claim.
10.3 A Seller's Warranty Breach becomes due and payable in case the Claim is granted by an arbitral award in accordance with Clause 17 or such Claim has been settled by the relevant Parties in accordance with this Clause 10.
10.4 If any Claim or any matter or circumstance potentially giving rise to a Claim notified pursuant to Clause 10.1 relates to a claim by a third party in or out of court against the Purchaser or a Group Company ("Third Party Claim"), the following shall apply. The Seller may at any time, by a written notice to the Purchaser, at its own expense take over the defence of the Third Party Claim, whereby the Seller assumes the liability of the outcome of such Third Party Claim. If the Seller takes over the defence the Purchaser shall, and shall ensure that the Purchaser Group will:
(a) leave the conduct of the Third Party Claim entirely to the Seller, provided that it shall keep the Purchaser updated and consult with the Purchaser on the strategy and direction of its defence on a regular basis; and Project Waterway - Share Purchase Agreement 16
(b) give the Seller all assistance necessary to conduct the Third Party Claim on receipt its behalf, or on behalf of such notification for the purpose relevant member of this Paragraph 6.2the Purchaser Group, including by granting powers of attorney.
6.310.5 If the Seller has not issued a notice pursuant to Clause 10.4, within 45 Business Days, the Purchaser shall have the right to settle, at its own expense and with its own professional advisors, any Third Party Claim, provided no settlement is made without the Seller's prior written consent. Subject Such consent is a condition to the following provisions Seller's liability in connection with a Third Party Claim and its settlement.
10.6 Upon receiving notification of this Paragraph 6.3a Claim pursuant to Clause 10.1, the Buyers shall Purchaser shall:
(a) allow the Seller or its representatives access to books, records and where relevant, shall procure that to such personnel of the relevant Purchaser Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax investigate the Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or;
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of disclose to the Seller at any time or by or of a Group Company prior its representatives all information and documents relevant to the ClosingClaim; orand
(c) should take such steps as the Seller may request pursuant to Clause 10.4.
10.7 A Claim shall not be enforceable against the Seller, following receipt unless within twelve months of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
notification pursuant to Clause 10.1 either (i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
Claim is settled between the Parties or (ii) fail within fifteen (15) Business Days the Purchaser institutes and pursues legal proceeding in relation to notify the Buyers Claim in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupgood faith.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Share Purchase Agreement (Laureate Education, Inc.)
Conduct of Claims. 6.1. If a Buyer 8.1 Within thirty (30) Business Days of the Purchaser or a any of the Group Company becomes Companies becoming aware of a Tax ClaimClaim for Taxation relevant for the purposes of this Deed, the Buyer shall Purchaser or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be), shall give written notice of the Claim for Taxation to the Sellers; provided, however, that failure to give such notification shall not affect the Purchaser's or any Group Company's right to indemnification hereunder except to the extent the Sellers have actually been prejudiced as a result of such failure. If the Sellers shall indemnify and secure the relevant Group Company or Group Companies to their reasonable satisfaction against all losses, costs, damages and expenses (including, without limitation, interest on overdue Taxation), which may be incurred by the relevant Group Company or Group Companies, then the Purchaser and the relevant Group Company or Group Companies shall take such action and give such information and assistance in connection with the affairs of the relevant Group Company or Group Companies as the Sellers may reasonably and promptly by written notice request to avoid, resist, appeal or compromise the Claim for Taxation.
8.2 No Group Company shall be obliged to appeal against any Taxation Assessment raised on it if, having given the Sellers written notice of the receipt of that Taxation Assessment in accordance with sub-clause 8.1, it has not within twenty (20) Business Days of the giving of such notice received instructions in writing from the Sellers, in accordance with sub-clause 8.1, to make that appeal.
8.3 The Sellers shall not be entitled to request the Purchaser or a Group Company to take any action under this clause if in respect of any Claim for Taxation notified under sub-clause 8.1 it appears to the Purchaser (and would appear to a reasonably prudent business person) that either the Sellers or the relevant Group Company, whilst it was under the control of the Sellers, has committed acts or omissions which may satisfy constitute fraud or settle misfeasance.
8.4 For the avoidance of doubt, the actions which the Sellers may reasonably request under sub-clauses 8.1 and 8.2 shall include the relevant Group Company or Group Companies applying to postpone (so far as legally possible) the payment of any Taxation but the Sellers shall not be entitled under sub-clauses 8.1 and 8.2 to request that it be allowed to take on or take over the conduct of all or any proceedings arising in connection with the Claim for Taxation in question. The Purchaser and the relevant Group Company or Group Companies shall provide the Sellers with copies of all correspondence entered into and notes of any conversations or meetings with any Tax Liability Authority to the extent that such correspondence or notes relate to the Claim for Taxation in question. The Sellers shall keep all such information confidential.
8.5 The relevant Group Company or the Purchaser (as the case may be) shall be at liberty without reference to the Sellers to admit, compromise, settle, discharge or otherwise deal with any Claim for Taxation after whichever is the earliest of:
(a) the service of a notice in writing on such terms as it may in its absolute discretion think fit without prejudice to the relevant Group Company or the Purchaser by any of the Buyers’ rights Sellers to the effect that it considers the Claim for Taxation should no longer be resisted;
(b) the expiry of a period of ten (10) Business Days following the service of a notice by the relevant Group Company or the Purchaser (as the case may be) on the Sellers requiring the Sellers to clarify or explain the terms of any request made under sub-clause 8.1; and
(c) if appropriate, the expiration of any period prescribed by applicable legislation for the making of any appeal against either the Claim for Taxation in question or the decision of any court or tribunal in respect of any such Claim for Taxation, as the case may be.
8.6 The Sellers shall be bound to accept for the purposes of this ScheduleDeed any admission, compromise, settlement or discharge of any Claim for Taxation (and the outcome of any proceedings relating thereto) made or arrived at in accordance with the provisions of this clause 8.
Appears in 1 contract
Conduct of Claims. 6.1. (a) If a Buyer the Target or a Group Company the Purchaser receives or becomes aware of a Tax ClaimClaim for Tax, the Buyer Purchaser shall or shall procure that the relevant Group Company Target shall within a reasonable time give written notice of such Claim for Tax to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Vendor as soon as reasonably practicable and and, in any event, in the Buyers shall be deemed case where the Claim for Tax consists of an assessment or demand for which the period for response or appeal is time limited, within fifteen Business Days prior to have given the Seller expiry of such time limit (provided that failure to deliver such notice within such time frame will not restrict the ability of the Purchaser to make a claim against the Vendor pursuant to this Clause 7 or under the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2Warranties).
6.3. (b) Subject to this Clause 7.5(b), Clause 7.5(c) and Clause 7.5(f) the following provisions of this Paragraph 6.3, the Buyers Purchaser shall (and where relevant, or shall procure that the relevant Group Companies shall) Target shall take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, mitigate, compromise or compromise contest any Claim for Tax Claim (a “Disputed Tax Claim”) or any matter relating to as the Disputed Tax Claim but only Vendor may reasonably request in writing provided that the Seller Purchaser shall first (not be obliged to take or procure that the Target takes any such action unless the Vendor has indemnified the Purchaser and the Target to the Buyers’ Purchaser’s reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) satisfaction against any taxation, losses, damages, costs or expenses which it may suffer or incur as a result of be incurred in taking such action (including any additional liability to Tax)action.
6.4. Without prejudice (c) Subject to this Clause 7.5(c) the Vendor may elect to have any action referred to in Clause 7.5(b) delegated to it and conducted by professional advisers nominated by it for this purpose acting on behalf of the Target and reporting to the liability of Vendor in which event the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax ClaimVendor shall:
(ai) keep the Purchaser fully informed of all matters relating to the action and promptly deliver to the Purchaser copies of all written correspondence to or from a Tax Authority relating to the action;
(ii) obtain the Purchaser’s prior written approval (not to be unreasonably withheld or delayed) to the extent content and sending of each written communication relating to the action to a Tax Authority and the Vendor shall include the Purchaser’s reasonable comments thereon and shall allow the Purchaser at least ten Business Days to consider such approval and to provide its comments;
(iii) not be entitled to procure that it would involve the Target makes or defends any appeal before a Group Company contesting any Disputed Tax Claim before any tribunal, court or other appellate body, body unless in leading Tax counsel (Counsel) (appointed at the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being cost of the Institute of Chartered Accountants in England and Wales upon Vendor) advises that the application of either the Buyer appeal or the Seller an appeal defence is a reasonable course of action given to take in all the circumstances including having regard to the likelihood amount of the liability in question and the chances of success; or
. Counsel shall be chosen by the Vendor with the Purchaser’s approval (b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action such approval not to be taken by a Buyer unreasonably withheld or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested delayed). Counsel shall be instructed by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability Vendor who shall take account of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been all reasonable comments made by the Seller Purchaser in preparing the instructions. The Purchaser shall be entitled to a Buyer of an amount equal to such Taxation and in respect of it; orattend any conference with Counsel;
(fiv) that requires a Group Company notwithstanding paragraph (iv) above, not be entitled to take procure the Target makes or defends any appeal before the Court of Appeal or any superior tribunal unless the Vendor secures the Purchaser to its satisfaction against any taxation, losses, damages, costs or expenses referred to in clause 7.5(b) above;
(v) not be entitled to procure the Target takes any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.which:
Appears in 1 contract
Samples: Agreement for the Purchase of Shares (Live Nation Entertainment, Inc.)
Conduct of Claims. 6.1. 7.1 If a Buyer or a Group Company the Purchaser becomes aware of any Assessment which does or may give rise to a Tax ClaimClaim the Purchaser shall give notice in writing of such Assessment as soon as reasonably practicable to the Covenantor (and in any event, where the Buyer shall or shall procure that the relevant Group Company shall Assessment requires a response within a reasonable time give notice limit to avoid the imposition of any penalty, fine or interest, or to preserve a right of appeal, no later than 10 days prior to the Seller expiry of the Tax Claim, provided always that the such time limit) The giving of such notice shall not be a condition precedent to the liability of the Seller Covenantors under this Scheduledeed.
6.2. 7.2 If the Seller becomes aware of a Tax ClaimCovenantors shall indemnify the relevant Group Company and the Purchaser to their reasonable satisfaction against any additional Tax, losses, fines, penalties, interest, charges, costs and expenses, the Seller Purchaser shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies Company shall) , subject to CLAUSE 7.3, take such lawful and reasonable action as the Seller may Covenantor shall reasonably request by notice in writing require to avoid, dispute, defend, resist, appeal appeal, compromise or compromise any Tax Claim contest such Assessment (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax"COVENANTOR'S ACTION").
6.4. Without prejudice 7.3 Neither the Purchaser nor any Group Company shall be obliged to appeal against any Assessment if, having given the liability Covenantor notice of the Seller under this Schedulereceipt of that Assessment, it has not within 10 Business Days received instructions in writing from the Buyers Covenantor in accordance with CLAUSE 5.2 to make that appeal.
7.4 Neither the Purchaser nor any Group Company shall not be obliged to take or procure the taking of any action or further action under Paragraph 6.3 this clause in respect of any Tax Claim:
(a) Assessment if the Purchaser has reasonable grounds to believe that either the extent that it would involve a Covenantor or the relevant Group Company prior to its being in the ownership of the Purchaser, have committed acts or omissions which may constitute fraudulent or negligent conduct.
7.5 Neither the Purchaser nor any Group Company shall be required to take any action which in its reasonable opinion is likely to result in any Group Company incurring a Liability to Tax or an increased Liability to Tax or it is likely to affect the future liability to Tax of any Group Company.
7.6 Neither the Purchaser nor any Group Company shall be obliged to take any action under this CLAUSE 7 which involves continuing the Covenantor's Action or contesting any Disputed Tax Claim Assessment before any court or other appellate body, body (excluding the Tax Authority demanding the Tax in question) unless in the Covenantor furnishes the Purchaser with the written opinion of tax leading Tax counsel to the effect that an appeal against the Assessment in question will, on the balance of appropriate probabilities, be won.
7.7 The Purchaser and any Group Company shall be at liberty without reference to the Covenantor to admit, compromise, settle, discharge or otherwise deal with any Assessment after whichever is the earliest of:
7.7.1 the Purchaser or the relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed Group Company being notified by the President Covenantor in writing that it considers the Assessment should no longer be resisted;
7.7.2 the expiry of a period of 7 days following the service of a written notice by the Purchaser or the relevant Group Company on the Covenantor, requiring the Covenantor to clarify or explain the terms of any request made under CLAUSE 5.2 during which period no such clarification or explanation has been received by the Purchaser or the relevant Group Company; and
7.7.3 if appropriate, the expiration of any period prescribed by applicable legislation for the time being making of the Institute of Chartered Accountants in England and Wales upon the application of an appeal against either the Buyer Assessment or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing decision of any further action to be taken by a Buyer court or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and tribunal in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Groupsuch Assessment, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy .
7.8 The Covenantor shall be bound to accept for the purposes of this deed any admission, compromise, settlement or settle discharge of any Assessment and the Tax Liability on such terms as outcome of any proceedings relating to it may made or arrived at in its absolute discretion think fit without prejudice to any accordance with the provisions of the Buyers’ rights under this Schedule.this
Appears in 1 contract
Samples: Tax Deed (Great Plains Software Inc)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, 6.4.1 The Vendor shall have the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice right to the Seller control all aspects of the Tax Claim, provided always that the giving defence of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevantany counterclaims with respect to) any claims brought against the Purchaser, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, Purchaser’s Group or any company of the Companies that is at are covered by the time indemnification set forth in question Clause 6.1 (Indemnification by the Vendor), including, without limitation, the selection of counsel, determination of whether to appeal any decision of any court and the settling of any such matter or any issues relating thereto; provided, however, that no such settlement shall be entered into without the consent (which consent shall not be unreasonably withheld) of the Purchaser (with the concurrence of the conflicts committee of the Purchaser) unless it includes a full release of the Purchaser, any member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue Purchaser’s Group and each of any provision in Paragraph 6.4the Companies from such matter or issues, the relevant Buyer or Group Company (as the case may be) may satisfy .
6.4.2 The Purchaser agrees to cooperate fully with the Vendor with respect to all aspects of the defence of any claims covered by the indemnification set forth in Clause 6.2 (Indemnification by the Vendor ), including, without limitation, the prompt furnishing to the Vendor of any correspondence or settle other notice relating thereto that the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to Purchaser, any member of the Purchaser’s Group or any of the Buyers’ rights under Companies may receive, permitting the names of such parties to be utilized in connection with such defence, the making available to the Vendor of any files, records or other information of such parties that the Vendor considers relevant to such defence and the making available to the Vendor of any employees of the Purchaser, any member of the Purchaser’s Group or any of the Companies; provided, however, that in connection therewith the Vendor agrees to use reasonable efforts to minimize the impact thereof on the operations of such parties and further agrees to maintain the confidentiality of all files, records and other information furnished by any such party pursuant to this ScheduleClause 6.4 (Conduct of claims).
6.4.3 In no event shall the obligation of the Purchaser to cooperate with the Vendor as set forth in Clause 6.4 (Conduct of claims) be construed as imposing upon the Purchaser an obligation to hire and pay for counsel in connection with the defence of any claims covered by the indemnification set forth in this Clause 6 (Indemnities); provided, however, that the Purchaser may, at its own option, cost and expense, hire and pay for counsel in connection with any such defence.
6.4.4 The Vendor agrees to keep any such counsel hired by the Purchaser reasonably informed as to the status of any such defence (including providing such counsel with such information related to any such defence as such counsel may reasonably request) but the Vendor shall have the right to retain sole control over such defence.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If a Buyer or a Group Company becomes the Purchaser shall become aware of a Tax Claimany actual or potential claim under this Deed, it shall give written notice thereof to the Vendors and shall (subject to the Vendors indemnifying and securing the Purchaser, the Buyer shall Company, the Subsidiaries and the Patina JV Group as applicable to the Purchaser’s reasonable satisfaction against any liabilities, costs, damages or shall expenses which may be incurred thereby) take such action and procure that the Company, the relevant Group Company shall within a reasonable time give notice to Subsidiary and/or the Seller relevant member of the Tax Claim, provided always that the giving of such notice Patina JV Group shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller Indemnifiers may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal resist or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only liability, provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimthat:
(a) neither the Company nor the relevant Subsidiary nor the Purchaser nor Patina JV Group shall be required to take any such action unless the Indemnifiers shall have produced to them the opinion of a counsel practising in the relevant area of law that such action is reasonable; and
(b) neither the Company and/or the relevant Subsidiary nor the Purchaser or the Patina JV Group shall in any event be required to take any steps which would require any admission of guilt or liability relating to matters connected with the claim in question or which would affect the future conduct of the business of the Purchaser, the Company, any of the Subsidiaries, the Patina JV Group or any subsidiaries of the Purchaser or affect the rights or reputations of any of them.
4.2 The due date for the making of payments under this Deed shall be:
(a) where the payment relates to a liability of the Company or any of the Subsidiaries or any member of Patina JV Group to make any payment in respect of Tax, the date which is five business days before the date on which such actual payment is due to be made to the extent that it would involve relevant authority;
(b) where the payment relates to a Group Company contesting any Disputed Tax Claim before any court or other appellate bodymatter falling within Clauses 1.3(a), unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed date falling five business days after such Vendors has been notified by the President Purchaser that the auditors for the time being of the Institute of Chartered Accountants in England and Wales upon Company, the application of either the Buyer relevant Subsidiary or the Seller an appeal is a reasonable course relevant member of action given all Patina JV Group have certified at the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or request of the Seller at any time Purchaser, the Company, the relevant Subsidiary or by or the relevant member of Patina JV Group that such Vendors has a Group Company prior to the Closing; orliability for a determinable amount under Clause 2;
(c) should where the Sellerpayment relates to a matter falling within Clause 1.3(b), following receipt the date on which the repayment of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action would otherwise have been due to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Sellermade; orand
(d) if, in the Buyers’ reasonable opinioncase of costs and expenses within Clause 2(c), the action requested date on which the relevant member of the Group, the Patina JV Group or the Purchaser become liable to pay such costs and expenses.
4.3 The Indemnifiers shall give all such assistance and provide such information as the Purchaser shall reasonably request from time to time for the purpose of enabling the Purchaser or any member of the Group to make returns and provide information as required to any authority and to negotiate any liability.
4.4 If any sum payable by the Seller pursuant Indemnifiers to Paragraph 6.3 is likely to affect materially and adversely the liability Purchaser, the Company, any of a Buyer or a the Subsidiaries and/or any member of the Patina JV Group Company under this Deed shall be subject to Tax (whether by way of deduction or withholding or direct assessment of the business or financial interests of any of them; or
(e) if a Group Company would person entitled thereto), such payment shall be required to appeal against any assessment or demand for Tax where it is a requirement for increased by such an appeal amount as shall ensure that after deduction, withholding or payment of such Tax the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of recipient shall have received an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company the payment otherwise required hereby to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupbe made.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Conduct of Claims. 6.1. If 8.3.1 The Insurance must provide that, pending resolution of any coverage dispute and without prejudice to any issue in dispute, the Insurer shall if so directed by the Law Society conduct any Claim against the Insured, advance Defence Costs to the Insured and if appropriate compromise and/or pay any Claim against the Insured, such a Buyer or direction by the Law Society to be known as a Group Company becomes aware Direction.
8.3.2 The Law Society may make a Direction as referred to in clause 8.3.1 upon receipt of a Tax Claim, request for such Direction from the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first Insured (to the Buyers’ exclusion of all other parties) if it is satisfied, in its absolute discretion, that:-
(a) the Insured has taken all reasonable satisfactionsteps, to resolve the dispute with the other party, including but not limited to participating in Arbitration until a final decision had been made by the arbitrator as outlined in clause 8.1;
(b) indemnify there is a reasonable prospect that the Buyers and/or coverage dispute will be resolved or determined in the Group Companies Insured’s favour;
(c) the Insured has demonstrated to the satisfaction of the Law Society that, in connection with the claim made to the Insurer, the Insured has provided all information reasonably requested by the Insurer and answered all reasonable questions asked by the Insurer in relation to the subject matter of the dispute; and
(d) it is fair and equitable in all the circumstances for such Direction to be given.
8.3.3 The Law Society may delegate its power to make a Direction in relation to a claim under clause 8.3.2 to an independent expert, to be appointed by the Law Society at is sole discretion and in accordance with any guidelines that may be adopted by the PII Committee from time to time in relation to the independence or expertise of any expert so appointed. For the avoidance of doubt, such independent expert must be satisfied that conditions (a) to (d) of clause 8.3.2 are met before making a Direction under that clause.
8.3.4 The Insurance may provide that the Insured shall be required to afford reasonable co- operation to the Insurer in relation to the handling of any Claim against the Insured, subject to the Insurer agreeing to meet the Insured’s reasonable costs of such co-operation, and the Insurance may further provide that the Insurer shall be entitled to recover from the Insured by way of damages a sum equal to the Insurer’s loss arising from or connected with the Insured’s failure to co-operate as required by the Buyers) against Insurance. For the avoidance of doubt, the Insurance may not permit the Insurer to refuse to pay any lossesclaim, damagesor to cancel, costs terminate or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice avoid the Insurance, due to the liability of the Seller under this Schedule, the Buyers shall not be obliged Insured’s failure to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed co-operate as required by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupInsurer.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Participating Insurers Agreement
Conduct of Claims. 6.1. 6.1 If a Buyer or a Group Company the Purchaser becomes aware of that any claim (other than a Tax Claim) has been made against the Company or the Subsidiary by a third party after Completion which is likely to result in the Purchaser being entitled to make a claim against the Vendors, the Buyer Purchaser shall, and shall procure that any relevant Affiliate of the Purchaser shall:
6.1.1 give notice of such claim to the Vendors as soon as reasonably practicable;
6.1.2 not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto without the prior written agreement of the Vendors (not to be unreasonably withheld or delayed);
6.1.3 subject to the Vendors becoming parties to any confidentiality agreement as reasonably requested by the Purchaser, give the Vendors and their professional advisers reasonable access to the premises and personnel of the Purchaser, the Company and the Subsidiary and to any relevant chattels, documents and records within the power, permissions or control of the Purchaser, the Company and the Subsidiary to enable the Vendors and their professional advisers to examine such chattels, accounts, documents and records and take copies or photocopies of them at their own expense;
6.1.4 take such action as the Vendors shall reasonably request to avoid, dispute, resist, compromise, defend or mitigate any such claim (other than any claim the defence of which would be likely to materially adversely affect the goodwill of the business of the relevant Affiliate of the Purchaser or any claim which seeks or in respect of which there has been granted injunctive relief), subject to the relevant Affiliate of the Purchaser being entitled to employ its own legal advisers and provided that the Vendors shall indemnify and hold harmless all Affiliates of the Purchaser against all Losses incurred by any of them arising from any action taken by any Affiliate of the Purchaser at the request of the Vendors pursuant to this paragraph; and
6.1.5 consult as is reasonably practicable with the Vendors as regards the conduct of any proceedings arising out of such claim.
6.2 Notwithstanding the preceding provisions of this Schedule, if at any time any of the Vendors pays to the Purchaser an amount in respect of any claim (other than a Tax Claim) and the Purchaser, the Company and/or any Affiliate of the Purchaser subsequently becomes entitled to recover from any third party any sum in respect of the facts, matters or circumstances giving rise to the claim, then the Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller and/or any Affiliate of the Tax Claim, provided always that the giving of Purchaser shall take all commercially reasonable steps to enforce such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2recovery. If the Seller becomes aware of a Tax ClaimPurchaser, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice Company and/or any Affiliate of the Tax Claim on receipt Purchaser shall at any time recover any sum from a third party which is referable to the facts, matters or circumstances giving rise to any claim in respect of such notification for which any of the Vendors have paid any sum to the Purchaser, then:
6.2.1 if the amount paid by the Vendors in respect of the claim is more than the Sum Recovered, the Purchaser shall immediately pay to the Vendors the Sum Recovered; and
6.2.2 if the amount paid by the Vendors in respect of the claim is less than or equal to the Sum Recovered, the Purchaser shall immediately pay to the Vendors an amount equal to the amount paid by the Vendors. For the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3clause, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers‘Sum Recovered’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of means an amount equal to such Taxation and the total of the amount recovered from the relevant third party plus any repayment, supplement or interest in respect of it; or
(f) that requires a Group the amount recovered from the person under Section 825 or 826 of ICTA less any tax computed by reference to the amount recovered from the person payable by the Purchaser or the Vendors in recovering the amount from the third party or reasonable costs payable by the Purchaser, the Company to take and/or any action against any person who is at the time in question either an employee or director of any member Affiliate of the Buyers’ Tax Group, or Purchaser in making any company that is at the time in question a member of the Buyers’ Tax Groupsuch recovery.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Share Purchase Agreement (Image Sensing Systems Inc)
Conduct of Claims. 6.1. 7.1 If a Buyer the Purchaser or a Group Company becomes aware of a Tax any Claim, the Buyer Purchaser shall or shall procure that the relevant Group Company give written notice in accordance with Clause 3.2 and shall within a reasonable time give notice to keep the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Vendor informed as soon far as reasonably practicable and the Buyers shall be deemed of all relevant information relating to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2matter.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers 7.2 The Purchaser shall (and where relevant, shall procure that the relevant Group Companies shall) Company, provided the Vendor previously indemnifies the Group Company and the Purchaser to the Purchaser's reasonable satisfaction against all liability, costs, damages or expenses which may be properly incurred thereby including any additional Liability for Taxation, take such action as the Seller Vendor may reasonably request by notice in writing given to the Purchaser to avoid, dispute, delay, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to hereinafter defined as the Disputed Tax Claim but only "Dispute"), provided that no Group Company nor the Seller Purchaser shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take appeal or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment to Taxation raised on any of them if, the Vendor having been given notice of the Claim in accordance with Clause 3.2 and such assessment, the Purchaser has not within 30 days of the date of the notice received instructions in writing from the Vendor to do so.
7.3 In respect of a Claim which is not conducted by the Vendor, and subject to the Vendor previously indemnifying the Group Company and Purchaser in accordance with Clause 7.2, the Purchaser shall, and shall procure that each Group Company shall:
7.3.1 promptly submit all written communications relating to the Claim which are to be transmitted to the relevant Taxation Authority to the Vendor for its approval (not to be unreasonably withheld or demand delayed) allowing reasonable time for Tax the Vendor to review then taking account of the date on which the Group received notice of the Claim and any time limits which apply and shall only transmit them after such approval is given, except where it is a requirement for such necessary to submit an appeal before the relevant time limit; and
7.3.2 make no settlement or compromise of a Dispute and shall make no payment in respect of it without the prior approval of the Vendor, provided that this shall not prevent the making of a payment of Taxation on the latest date on which such payment can be paidmade before interest, unless payment has previously been made by the Seller to a Buyer of an amount equal fines, and/or penalties will apply to such Taxation unless the Vendor directs otherwise in writing and in respect has previously provided full indemnity and security to the reasonable satisfaction of it; orthe Purchaser against all such interest, fines, and/or penalties.
(f) that requires a 7.4 If the Vendor does not request the Purchaser or the Group Company to take any action against any person who under Clause 7.2 of this Deed or fails to indemnify and secure the Purchaser and the Group Company to the Purchaser's reasonable satisfaction within a period of time (commencing with the date of the notice given to the Vendor) that is at reasonable having regard to the time in question either an employee or director nature of the Claim and the existence of any member time limit in relation 100 to avoiding, disputes, defending, resisting, appealing or compromising such Claim and which period shall not be less than 60 days or the Dispute concerns fraudulent or negligent conduct of the Buyers’ Tax Group, Vendor or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does Group Company prior to Completion (but not apply by virtue of any provision in Paragraph 6.4otherwise), the relevant Buyer Purchaser or Group Company shall have the conduct of the Dispute absolutely (as without prejudice to its rights under the case may beterms of this Deed) may satisfy or and shall be free to settle the Tax Liability Claim on such terms as it the Purchaser or the Group Company may in its absolute discretion think fit consider fit.
7.5 Subject to Clause 7.4, by agreement in writing between the Purchaser and the Vendor, the conduct of a Dispute shall be delegated to the Vendor upon the following terms, unless the Purchaser and the Vendor specifically agree otherwise in writing:
7.5.1 the Group Company, the Purchaser and the Vendor shall use their reasonable endeavours to keep each other fully informed of all matters pertaining to a Dispute and shall be entitled to see and keep copies of all relevant correspondence and notes or other written records (or a record of any oral discussions) as soon as practicable after receipt of the same with any Taxation Authority to the extent that it relates to a Dispute;
7.5.2 the appointment of solicitors or other professional advisers shall be notified to the Purchaser;
7.5.3 all written communications pertaining to the Dispute be prepared by the Vendor which are to be transmitted to the relevant Taxation Authority shall first be submitted to the Purchaser for approval and shall only be finally transmitted if such approval is given (unless when such transmission is required on order to meet a relevant time limit), which approval is not to be unreasonably withheld or delayed; and
7.5.4 the Vendor shall make no settlement or compromise of the Dispute or agree any matter in the conduct of the Dispute which is likely to affect the amount thereof or the future liability to Taxation of the Company or of the Purchaser without prejudice the prior approval of the Purchaser, such approval not to be unreasonably withheld or delayed.
7.5.5 the Vendor may pay amounts of the relevant Liability to Taxation to the relevant Taxation Authority in satisfaction (to the extent of such payment) of the liability of the Vendor under Clause 2.1 in respect of the Liability to Taxation in question.
7.5.6 Notwithstanding any other provision of this Deed, where the Vendor has conduct of a Claim, the Vendor may make payment of any amount under Clause 7.5.5 where it is necessary to avoid or avoid an increase to any item set out in Clause 1.8.2.
7.6 Neither the Purchaser nor any Group Company shall be subject to any claim by or liability to the Vendor for non-compliance with any of the Buyers’ rights under foregoing provisions of this ScheduleClause 7 if the Purchaser or the Group Company has bona fide acted in accordance with the written instructions of the Vendor.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Krug International Corp)
Conduct of Claims. 6.1. If a Buyer 6.1 Subject to paragraphs 6.4 and 6.5, if the Purchaser or a Group Company becomes aware of a Tax ClaimAssessment relevant for the purposes of this Schedule, the Buyer shall Purchaser shall, or shall procure that the relevant Group a Company shall within a reasonable time shall, give written notice thereof to the Seller of within ten Business Days if the Tax Claim, provided always Assessment is subject to a time limitation of 30 days or less for an appeal and otherwise within 25 Business Days but so that the giving of such notice under this paragraph shall not be a condition precedent to the liability making of a claim under this Schedule unless the Seller is wholly prevented by the lack of notice from avoiding, resisting, appealing or compromising the Tax Assessment or from making a claim under this Schedule.
6.2any Tax Deed mentioned in paragraph 6.5. If the Seller becomes aware of The Purchaser shall procure that a Tax Claim, Company shall (if the Seller shall notify indemnify the Buyers in writing as soon as reasonably practicable and Company concerned to the Buyers shall be deemed to have given the Seller notice reasonable satisfaction of the Tax Claim Purchaser against all losses, costs, damages and expenses, including, without limitation, interest on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3overdue Taxation, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shallwhich may be incurred thereby) take such action and give such information and assistance in connection with the affairs of the Company concerned as the Seller may reasonably and promptly by written notice request by notice in writing to avoid, dispute, defend, resist, appeal or compromise the Tax Assessment.
6.2 Subject to sub-paragraph 6.3 the actions which the Seller may reasonably request under sub-paragraph 6.1 shall include (without limitation) the procuring of the Company concerned to apply to postpone (so far as legally possible) the payment of any Tax Claim (a “Disputed Tax Claim”) Taxation and/or allowing the Seller to take on or take over at its own expense the conduct of all or any matter relating to proceedings of whatsoever nature arising in connection with the Disputed Tax Claim but only provided Assessment in question, and, if the Seller takes on or takes over the conduct of proceedings, the Purchaser shall provide and shall procure that the Company concerned shall provide such information and assistance as the Seller may reasonably require in connection with the preparation for and conduct of those proceedings.
6.3 If the Seller elects to have conduct of a Tax Assessment in accordance with the provisions of this paragraph the Purchaser shall first (be kept informed of all matters pertaining thereto and all steps proposed to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required be taken by the BuyersSeller and shall be sent copies of all material correspondence in connection with the Tax Assessment in question.
6.4 In the case of a Liability to Taxation mentioned in sub-clause 2(2) against any losses, damages, costs or expenses which it may suffer or incur of the Telus 1997 Tax Deed arising as a result of taking such action (including any additional liability a Telus 1997 Covenantor or a Telus Company failing to Tax).
6.4. Without prejudice to the liability perform its obligations under clause 2(1) of the Seller under this Schedulethat Deed, the Buyers notice mentioned in paragraph 6.1 shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent given within fourteen days if that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller is earlier than within ten Business Days and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer shall also in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days paragraph 6.5 below be given to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is Telus 1997 Covenantors at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupsame time.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. Save in respect of a Specified Claim relating to Taxation (to which the provisions of the Tax Deed shall apply) or in respect of any claim, payment or adjustment to be made pursuant to Clause 4 or Schedule 5 or in respect of Specified Claims under Clause 9.1.7 which relate to claims under or in connection with insurance or reinsurance policies issued by the Operations:
8.7.1 If a Buyer or a Group Company any party to this Agreement (the "Claimant") becomes aware of any matter that is likely in the reasonable opinion of the Claimant to give rise to a Tax Claim, Specified Claim against another party to this Agreement (the Buyer "Recipient") under this Agreement notice of that fact shall be given to the Recipient as soon as and in any case within seven Business Days thereafter but failure to give such timely notice shall not affect the rights of the Claimant except to the extent that the Recipient is prejudiced by such failure.
8.7.2 Without prejudice to the validity of the claim or alleged claim in question the Claimant shall on reasonable terms allow and shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller Associated Companies of the Tax Claim, provided always that Claimant allow the giving Recipient and its accountants and professional advisers to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such notice claim and for such purpose the Claimant shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable give and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Associated Companies shall) take of the Claimant give subject to the Recipient providing an indemnity in terms reasonably satisfactory to the Claimant in respect of all reasonable out-of-pocket costs and expenses, all such action reasonable information and assistance including access to premises and personnel and the right to examine and copy or photograph any assets, accounts, documents and records as the Seller Recipient or its accountants or professional advisers may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that subject to Clause 8.4.3(iii) the Seller Claimant shall first (not be required to provide access to or copies of any information which is of a legally privileged nature.
8.7.3 If the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as Specified Claim in question is a result of taking such action (including any additional or in connection with a claim by or liability to Tax).
6.4. Without prejudice to the a third party then: (cx) no admission of liability shall be made by or on behalf of the Seller under this Schedule, Claimant or any Associated Company of the Buyers Claimant and the claim shall not be obliged to take compromised, disposed of or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being settled within 30 Business Days of the Institute of Chartered Accountants in England and Wales upon relevant notice served pursuant to Clause 8.4.1 (the application of either "Recipient's Assessment Period") without the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or consent of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action Recipient such consent not to be taken by a Buyer unreasonably withheld or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.delayed;
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If a Buyer the Purchaser or a Group Company Holdings becomes aware of any Claim for Tax which gives or may give rise to a Holdings Tax Claim, the Buyer shall Purchaser shall, or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax ClaimHoldings shall, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable (and in any event in the Buyers shall be deemed to have given the Seller notice case of the Tax Claim on receipt of such notification a Claim for the purpose Tax consisting of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it or for which the time for response or appeal is a requirement limited, not less than five clear Business Days prior to the day on which the time for response or appeal expires) give written notice of the Claim for Tax to the Warrantors.
4.2 If the Warrantors require in writing, the Purchaser shall, or shall procure that Holdings shall, supply the Warrantors with such an available and relevant details, documentation, correspondence and information and shall take such action as the Warrantors may reasonably request in writing to negotiate, avoid, dispute, resist, compromise, defend or appeal against the Claim for Tax.
4.3 The Warrantors shall have the right to have any action mentioned in paragraph 4.2 conducted by their nominated professional advisers provided that the Taxation appointment of such professional advisers shall be paidsubject to the approval of the Purchaser (such approval not to be unreasonably withheld or delayed).
4.4 The taking of action under paragraph 4.2, unless payment has previously been made whether by the Seller Warrantors or by their nominated professional advisers, is subject to the following conditions:
4.4.1 the Warrantors shall indemnify (subject always to the paragraphs 1.1 and 1.2 of Schedule 9) and secure to the Purchaser’s satisfaction Holdings and the Purchaser against all costs and expenses or other liabilities in connection with taking any such action (including without limitation any additional Claim for Tax, and the interest on Tax);
4.4.2 the Warrantors shall not be entitled to require the Purchaser or Holdings to make any settlement or compromise of any Claim for Tax or agree any matter in the conduct of any Claim for Tax which may have a Buyer materially adverse effect on the future liability to Tax of an amount equal Holdings or the Purchaser or any member of the Purchaser’s Group as at Completion;
4.4.3 Holdings or the Purchaser may take any action it reasonably considers fit to such Taxation and in respect settle or compromise any Claim for Tax if having given notice of it; orthe receipt of the relevant Claim for Tax the Purchaser has not, within 15 Business Days of the date of that notice, received any instructions from Warrantors (or their duly authorised agents) as to the conduct of the Claim for Tax;
(f) that requires a Group Company 4.4.4 neither Holdings nor the Purchaser shall be obliged to take any action against which might mean contesting any person who Claim for Tax beyond the first appellate body (excluding the body making the Claim for Tax) unless the Warrantors have provided to the Purchaser an opinion of a Tax counsel approved for that purpose by the Purchasers stating that, on the balance of probabilities, an appeal is at the time in question either an employee recommended course of action;
4.4.5 the Purchaser or director of Holdings shall be entitled to admit, compromise, settle or discharge or otherwise deal with any member of the Buyers’ Claim for Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute reasonable discretion think consider fit without prejudice to where any Tax Authority alleges in writing fraud, wilful default, or fraudulent conduct on the part of any of the BuyersHoldings Vendors or Holdings or any of its then directors, in all cases, in respect of any accounting period commencing before Completion; and
4.4.6 if there is a dispute between Warrantors and the Purchaser as to whether any action requested by the Warrantors under paragraph 4.2 is reasonable and the dispute is not resolved between the Warrantors and the Purchaser within 30 Business Days, the dispute shall be referred for determination to Tax counsel of at least 10 years’ rights under call (or, in relation to a non-United Kingdom jurisdiction, a Tax lawyer of at least equivalent status in that jurisdiction) who is instructed by agreement between the Purchaser and the Warrantors or, in the absence of agreement within 10 Business Days of an individual first being proposed for the purpose by either the Purchaser or the Warrantors, appointed by the chairman for the time being of the Bar Council (or the officer of equivalent status in relation to a non-United Kingdom jurisdiction) at the expense of such party as determined by the appointed Tax counsel.
4.5 Neither the Purchaser nor Holdings shall incur any liability to the Warrantors as a result of any act or omission in connection with this Scheduleparagraph 4 if the Purchaser or Holdings has acted in accordance with the written instructions of the Warrantors (or their duly authorised agents or advisors).
4.6 The Purchaser shall keep the Warrantors fully informed of the progress in settling the relevant Claim for Tax and shall, as soon as reasonably practicable, forward, or procure to be forwarded to the Warrantors, copies of all material correspondence pertaining to it.
Appears in 1 contract
Samples: Share Purchase Agreement (Circor International Inc)
Conduct of Claims. 6.1. 7.1 If the Sale Companies or Purchaser receives or becomes aware of a Buyer Tax Claim which it reasonably considers may result in Seller becoming liable to make a payment under paragraph 1 or a Group Company becomes in respect of the Tax Warranties the Purchaser shall, as soon as reasonably practicable (in any event within ten (10) Business Days) of receiving or becoming aware of a Tax Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt to the Seller, such notice to include reasonably sufficient details of such notification Tax Claim, the due date for any payment and the purpose time limits for any appeal and, so far as practicable the amount of any claim or intended claim against Seller under this Paragraph 6.2Agreement.
6.3. Subject 7.2 In relation to the following provisions of this Paragraph 6.3any Tax Claims notified to Seller pursuant to paragraph 7.1 and subject to paragraph 7.3, the Buyers Purchaser shall, and shall (and where relevant, shall procure ensure that the relevant Group Sale Companies shall) will, take such any action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal resist or compromise the Tax Claim if Seller has indemnified the Purchaser and the Sale Companies against any additional Tax and costs and expenses which Purchaser or Sale Companies may reasonably and properly incur in connection with the taking of action pursuant to this paragraph. 85
7.3 Seller shall have conduct of and shall manage any Tax Claim (a “Disputed Tax Claim”) upon the following terms or any matter relating to the Disputed Tax Claim but only provided that the such other terms which Purchaser and Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 specifically agree in respect of any Tax Claimwriting:
(a) all written communication pertaining to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in Dispute which are transmitted to the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successTaxation Authority shall be copied to Purchaser; orand
(b) where Seller shall keep Purchaser informed of the material progress of any Tax Dispute.
7.4 Seller’s rights under paragraph 7.3 shall cease and Purchaser shall be free to reasonably settle, compromise or deal with any Tax Claim and/or Tax Dispute if Seller notifies Purchaser or the Sale Companies to the effect it no longer wishes to pursue the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupDispute.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Murphy Oil Corp /De)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the 7.1 Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice is given to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable after it shall become aware of any claim which may be made pursuant to this Deed and in any event 15 days before the Buyers shall be deemed to have given the Seller notice expiry of the Tax Claim on receipt of such notification any deadline for the purpose of this Paragraph 6.2lodging an appeal.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers 7.2 Buyer shall (and where relevant, it shall procure that the relevant Group Companies Company shall) take such action and provide such information and documentation as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal compromise or compromise defend any Tax Claim claim and any adjudication in respect thereof (a “Disputed Tax Claim”"dispute") or any matter relating subject to Buyer and the Disputed Tax Claim but only provided that Company being indemnified and secured to Buyer's reasonable satisfaction by Seller against the Seller shall first (liability to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any Taxation and all losses, costs, expenses, damages, interest, penalties and surcharges thereby incurred. Buyer shall account to Seller for any sum so recovered (net of Taxation) (if any) on such sum and any costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability recovery borne by Buyer) up to Tax).
6.4. Without prejudice to an amount not exceeding the liability of the amount paid by Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 clause 0 in respect of the liability in question.
7.3 If Seller does not request Buyer to take any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being such action within thirty days of the Institute of Chartered Accountants notice to Seller which should be in England and Wales upon the application of either the writing, Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
Company shall (bwithout prejudice to their rights under this Deed) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior be free to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy pay or settle the Tax Liability claim on such terms as it they may in its their absolute discretion think fit without prejudice fit.
7.4 Subject to the above, any dispute relating to a liability to Taxation shall be conducted by Seller but:
7.4.1 Seller shall keep Buyer fully informed of all relevant matters and shall promptly forward or procure to be forwarded to Buyer copies of all relevant correspondence and other relevant material information and documentation;
7.4.2 all communications relating to the dispute which are to be transmitted to a Taxing Authority shall first be submitted to the Company or Buyer for approval and shall only be finally transmitted if such approval is given, such approval not to be unreasonably withheld or delayed;
7.4.3 the appointment of solicitors or other professional advisers shall be subject to the prior written approval of Buyer, such approval not to be unreasonably withheld or delayed; and
7.4.4 If Buyer shall reasonably and in good faith consider that the dispute would be materially prejudicial to its relationship with any Taxing Authority or that of the Buyers’ rights under this ScheduleCompany Seller shall not proceed with the conduct of the dispute unless and until the parties concerned are advised by leading tax counsel that Seller will on a balance of probabilities succeed in the proposed conduct of the dispute. Such leading tax counsel shall be selected by Seller with the agreement of Buyer and shall be instructed jointly but his fees paid by Seller.
Appears in 1 contract
Samples: Tax Deed (Intertan Inc)
Conduct of Claims. 6.1. 3.1 If a Buyer the Target receives or a Group Company becomes aware of a Tax ClaimClaim for Tax, the Buyer shall or shall procure that the relevant Group Company Target shall within a reasonable time give written notice of such Claim for Tax to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and and, in any event, in the Buyers shall be deemed case where the Claim for Tax consists of an assessment or demand for which the period for response or appeal is time limited, within ten Business Days prior to have given the expiry of such time limit (provided that failure to deliver such notice should not restrict the ability of the Buyer to make a claim against the Seller notice of the Tax Claim on receipt of such notification for the purpose pursuant to this Schedule).
3.2 Subject to this paragraph 3.2 and 3.5 of this Paragraph 6.2.
6.3. Subject to Part the following provisions of this Paragraph 6.3, the Buyers Buyer shall (and where relevant, or shall procure that the relevant Group Companies shall) Target shall take such action to avoid, dispute, resist, appeal, mitigate, compromise or contest any Claim for Tax as the Seller may reasonably request by notice in writing and the Seller may elect to avoidhave any action referred to in this paragraph 3.2 delegated to it and conducted by the Seller or professional advisers nominated by it for this purpose, disputein each case acting in the name of the Target, defendbut (in the case of professional advisors) reporting to the Seller, resist, appeal or compromise in which event the Seller shall:
(a) keep the Buyer fully informed of all matters relating to any Tax Claim (a “Disputed Tax Claim”) or any matter action referred to in paragraph 3.2 of this Part and deliver to the Buyer copies of all material written correspondence relating to the Disputed action referred to in paragraph 3.2 of this Part;
(b) inform the Buyer in writing of the content of all material discussions, correspondence or other communication which it is intending to have with or submit to any Tax Claim but only Authority at least 10 business days prior to the intended discussion or submission of the correspondence or other communication (in each case the “Intended Communication”) to allow the Buyer to comment thereon. The Seller shall take account of and reflect in the Intended Communication any reasonable comments made by the Buyer;
(c) not submit, make or have any Intended Communication until the Buyer has either supplied the Seller with its comments or notified the Seller that it has no comments provided that if the Buyer does not supply any comments or give any such notification within 10 business days of receipt of the Intended Communication, then the Seller shall first be entitled to submit, make or have the Intended Communication.
3.3 The Buyer shall not be obliged to procure that the Target makes or defends any appeal against a determination by the Tax Chamber of the First-tier Tribunal unless leading Tax counsel of at least 7 years standing (“Counsel”) advises that the appeal or defence has more than a 50% chance of success. Counsel shall be chosen jointly by the Seller and the Buyer and shall be instructed by the Seller who shall take account of all reasonable comments made by the Buyer in preparing the instructions. The Buyer shall be entitled to attend any conference with Counsel.
3.4 The Buyer shall not be obliged to, or to procure the Target to, agree to the Buyers’ settlement or compromise of any Claim for Tax or any proposal for such settlement or compromise which, in the Buyer’s reasonable satisfaction) indemnify opinion is likely to have a material adverse effect on the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the future Tax liability of the Seller under this Schedule, the Buyers Target;
3.5 The Buyer shall not be obliged to take or procure that the taking of Target takes any action under Paragraph 6.3 in respect of any Tax Claimaction:
(a) where the Seller requests an appeal and the appeal cannot be made without the Tax the subject of the Claim for Tax being paid to the extent that it would involve a Group Company contesting any Disputed relevant Tax Claim before any court or other appellate bodyAuthority, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and pays such amount to the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successBuyer; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should if the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen becomes insolvent;
(15ii) Business Days to serve notice on has an administrative receiver or other receiver appointed over all or any of its assets or undertaking;
(iii) enters into any composition or arrangement with or for the Buyers under Paragraph 6.3benefit of its creditors; or
(iiiv) fail within fifteen (15) Business Days to notify if the Buyers in writing equivalent of any further action of the events described in this clause inclusive occurs in relation to be taken by a the Seller under the laws of any jurisdiction;
(c) which would constitute fraudulent or negligent conduct on the part of the Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from and/or the SellerTarget; or
(d) if, in which would be materially prejudicial to the Buyers’ reasonable opinionTax affairs of the Buyer, the action requested Target or any member of the Buyer’s Group.
3.6 The Seller shall indemnify the Buyer and the Target to their reasonable satisfaction against all reasonable costs, expenses, losses (including interest on overdue Taxation and any Tax Liability) and damages that may arise from the exercise by the Seller of its rights under this paragraph 3.
3.7 The Buyer shall or shall procure that the Target shall (at the Seller’s cost) provide such information and assistance as the Seller may reasonably require in connection with the preparation for and conduct of such proceedings.
3.8 If the Seller:
(a) does not request the Buyer to take any action pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of themparagraph 3.2; or
(eb) if a Group Company would fails to indemnify the Buyer and the Target (in accordance with paragraph 3.6); within 15 Business Days of the giving of written notice to the Seller under paragraph 3.1, the Buyer and the Target shall be required free to appeal against any assessment settle or demand pay the Claim for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may they shall in its their absolute discretion think fit without prejudice are reasonable.
3.9 For the avoidance of doubt it is agreed and declared that nothing contained in this paragraph 3 shall oblige the Buyer to prevent the Target from making a payment of Taxation at the time necessary to avoid incurring any fine, penalty or interest in respect of the Buyers’ rights under this Scheduleany unpaid Taxation.
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct of Claims. 6.1. 4.1 If a Buyer the Purchaser or a Group Company HHL becomes aware of any Claim for Tax which gives or may give rise to a HHL Tax Claim, the Buyer shall Purchaser shall, or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax ClaimHHL shall, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable (and in any event in the Buyers shall be deemed to have given the Seller notice case of the Tax Claim on receipt of such notification a Claim for the purpose Tax consisting of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it or for which the time for response or appeal is a requirement limited, not less than five clear Business Days prior to the day on which the time for response or appeal expires) give written notice of the Claim for Tax to the Warrantors.
4.2 If the Warrantors require in writing, the Purchaser shall, or shall procure that HHL shall, supply the Warrantors with such an available and relevant details, documentation, correspondence and information and shall take such action as the Warrantors may reasonably request in writing to negotiate, avoid, dispute, resist, compromise, defend or appeal against the Claim for Tax.
4.3 The Warrantors shall have the right to have any action mentioned in paragraph 4.2 conducted by their nominated professional advisers provided that the Taxation appointment of such professional advisers shall be paidsubject to the approval of the Purchaser (such approval not to be unreasonably withheld or delayed).
4.4 The taking of action under paragraph 4.2, unless payment has previously been made whether by the Seller Warrantors or by their nominated professional advisers, is subject to the following conditions:
4.4.1 the Warrantors shall indemnify (subject always to paragraphs 1.1 and 1.2 of Schedule 9) and secure to the Purchaser’s satisfaction HHL and the Purchaser against all costs and expenses or other liabilities in connection with taking any such action (including without limitation any additional Claim for Tax, and the interest on Tax);
4.4.2 the Warrantors shall not be entitled to require the Purchaser or HHL to make any settlement or compromise of any Claim for Tax or agree any matter in the conduct of any Claim for Tax which may have a Buyer materially adverse effect on the future liability to Tax of an amount equal Holdings or the Purchaser or any member of the Purchaser’s Group as at Completion;
4.4.3 HHL or the Purchaser may take any action it reasonably considers fit to such Taxation and in respect settle or compromise any Claim for Tax if having given notice of it; orthe receipt of the relevant Claim for Tax the Purchaser has not, within 15 Business Days of the date of that notice, received any instructions from Warrantors (or their duly authorised agents) as to the conduct of the Claim for Tax;
(f) that requires a Group Company 4.4.4 neither HHL nor the Purchaser shall be obliged to take any action against which might mean contesting any person who Claim for Tax beyond the first appellate body (excluding the body making the Claim for Tax) unless the Warrantors have provided to the Purchaser an opinion of a Tax counsel approved for that purpose by the Purchasers stating that, on the balance of probabilities, an appeal is at the time in question either an employee recommended course of action;
4.4.5 the Purchaser or director of HHL shall be entitled to admit, compromise, settle or discharge or otherwise deal with any member of the Buyers’ Claim for Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute reasonable discretion think consider fit without prejudice to where any Tax Authority alleges in writing fraud, wilful default, or fraudulent conduct on the part of any of the BuyersHoldings Vendors or HHL or any of its then directors, in all cases, in respect of any accounting period commencing before Completion; and
4.4.6 if there is a dispute between Warrantors and the Purchaser as to whether any action requested by the Warrantors under paragraph 4.2 is reasonable and the dispute is not resolved between the Warrantors and the Purchaser within 30 Business Days, the dispute shall be referred for determination to Tax counsel of at least 10 years’ rights under call (or, in relation to a non-United Kingdom jurisdiction, a Tax lawyer of at least equivalent status in that jurisdiction) who is instructed by agreement between the Purchaser and the Warrantors or, in the absence of agreement within 10 Business Days of an individual first being proposed for the purpose by either the Purchaser or the Warrantors, appointed by the chairman for the time being of the Bar Council (or the officer of equivalent status in relation to a non-United Kingdom jurisdiction) at the expense of such party as determined by the appointed Tax counsel.
4.5 Neither the Purchaser nor HHL shall incur any liability to the Warrantors as a result of any act or omission in connection with this Scheduleparagraph 4 if the Purchaser or HHL has acted in accordance with the written instructions of the Warrantors (or their duly authorised agents or advisors).
4.6 The Purchaser shall keep the Warrantors fully informed of the progress in settling the relevant Claim for Tax and shall, as soon as reasonably practicable, forward, or procure to be forwarded to the Warrantors, copies of all material correspondence pertaining to it.
Appears in 1 contract
Samples: Share Purchase Agreement (Circor International Inc)
Conduct of Claims. 6.1. 10.1 If a the Buyer or a the relevant Target Group Company becomes aware of that matters have arisen which will or are reasonably likely to give rise to a Tax Claim, General Warranty Claim the Buyer shall will (or shall will procure that the relevant Target Group Company shall within a reasonable time give notice to will):
10.1.1 as soon as reasonably practicable notify the Seller Individual Sellers’ Representative and the Institutional Sellers in writing of the Tax potential General Warranty Claim and of the matters which will or are reasonably likely to give rise to such General Warranty Claim (“Notification of Third Party Claim, ”) provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.Sellers in respect of any General Warranty Claim;
6.2. If 10.1.2 in the Seller becomes aware case of a Tax Third Party Claim, not make any admission of liability, agreement or compromise with any person, body or authority in relation to the Seller shall notify potential General Warranty Claim without prior written consent of the Buyers in writing as soon as reasonably practicable Individual Sellers’ Representative and the Buyers shall Institutional Sellers (such consent not to be deemed unreasonably withheld, conditioned or delayed);
10.1.3 in the case of a Third Party Claim, use reasonable measures to have given preserve all material information and documents which, to the Seller notice actual knowledge of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject Buyer, relates to the following provisions potential General Warranty Claim (“Retained Information”);
10.1.4 in the case of this Paragraph 6.3a Third Party Claim, if requested by the Buyers shall (Individual Sellers’ Representative and where relevantthe Institutional Sellers on reasonable prior notice and subject to duties of legal privilege, shall procure that give the Individual Sellers’ Representative and the Institutional Sellers and their professional advisers reasonable access during normal business hours to:
10.1.4.1 such of the personnel of the Buyer and/or the relevant Target Group Companies shall) Company as the Individual Sellers’ Representative and the Institutional Sellers may reasonably require in order to interview the personnel;
10.1.4.2 the Retained Information within the power, possession or control of the Buyer and/or the relevant Target Group Company in order to, at the Sellers’ own expense, examine, photograph and take copies of the same; and
10.1.5 in the case of a Third Party Claim, take such action as the Seller Sellers may reasonably request by notice in writing to avoid, disputeresist, contest, defend, resist, appeal compromise or compromise any Tax remedy the potential General Warranty Claim or the matters which will or are likely to give rise to such General Warranty Claim (a “Disputed Tax Claim”) or any matter but only to the extent relating to claims solely for monetary damages) and in each case on the Disputed Tax Claim but only provided basis that the Seller shall first Sellers will indemnify the Buyer and each other member of the Buyer’s Group (and provide security in relation thereto to the Buyers’ reasonable satisfaction) indemnify satisfaction of the Buyers and/or the Group Companies (as required by the BuyersBuyer) against any losses, damages, all reasonable third party out of pocket costs or and expenses which it may suffer or incur thereby be incurred as a result of taking such action a request by the Sellers; and
10.1.6 in the case of a Third Party Claim (including any additional liability to Tax).
6.4. Without prejudice but only to the liability extent relating to claims solely for monetary damages), and subject to the Sellers indemnifying the Buyer and each other member of the Seller under this ScheduleBuyer’s Group (and providing security in relation thereto to the reasonable satisfaction of the Buyer) against all reasonable third party out of pocket costs and expenses which may thereby be incurred, use advisers nominated by the Buyers Sellers and, if the Sellers request, allow the Sellers the exclusive conduct of such actions or proceedings, provided always that, for the purposes of paragraphs 10.1.5 and 10.1.6:
10.1.7 the Buyer shall not be obliged bound to take or procure the taking of of, and the Sellers shall not be permitted to take or procure the taking of, any action under Paragraph 6.3 in respect of any Tax Claimaction:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of 10.1.8 if such action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of will have or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior reasonably likely to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice have an adverse impact on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the legitimate business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Buyer’s Group;
10.1.8.1 unless the Sellers have confirmed in writing to the Buyer that the relevant matters in question give rise to a General Warranty Claim in respect of which the Sellers admit liability to the Buyer; and
10.1.8.2 subject to paragraph 10.2 below, if the loss suffered or reasonably likely to be suffered by the Buyer or any company that is at the time in question a other member of the Buyers’ Tax GroupBuyer’s Group in respect of the matters giving rise to the General Warranty Claim exceeds the amounts remaining in the Escrow Fund, net of aggregate amounts for pending claims against the Escrow Fund;
10.1.9 the Sellers shall not make or permit any admission of liability, agreement or compromise with any person, body or authority in relation to the potential General Warranty Claim without prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed).
6.5. If Paragraph 6.3 does not apply by virtue 10.2 The Buyer shall include in any Notification of Third Party Claim details of any provision in Paragraph 6.4, intention to reject any proposed conduct of such claim(s) on the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to basis of any of the Buyersprovisions of paragraphs 10.17 and/or 10.1.8 above. In the event that the Buyer confirms that the amount claimed is in excess of the Escrow Fund and the Sellers believe this amount claimed does not reasonably reflect the size of any possible claim (in the Sellers’ rights under this Schedulesole opinion) then the Individual Sellers Representative and/or the Institutional Sellers shall be entitled at any time within 10 days of receiving notice of any such Third Party Claim to request that an independent Queen’s Counsel in London, England, having no less than 10 years qualification and relevant expertise in the area of dispute (such nomination to be agreed between the Buyer and the Individual Sellers representative and the Institutional Sellers or, in the event of any dispute, as determined by the President of the Law Society in England) (“Independent Counsel”) determine whether the Third Party Claim may reasonably be assessed to be likely to exceed the sum contained in the Escrow Fund. The decision of the Independent Counsel shall be final and binding in the absence of manifest error. Whilst any decision on the size of any Third Party Claim/conduct has been referred to the Independent Counsel, the Buyer shall not make any admission of liability or settle any such claim without the prior written consent of the Individual Sellers Representative and the Institutional Sellers.
10.3 This paragraph 10 shall not apply to the Issue or the claim referred to in section 6.3.3 or any claim in respect of section 6.3.4.
Appears in 1 contract
Conduct of Claims. 6.1. 6.1 If a the Buyer or a Group Company becomes aware of a Tax Claimclaim against a Target Group Company by a third party or of any other fact, matter or circumstance, which in either case may result in the Buyer shall or shall procure that being entitled to pursue a Non-Tax Claim against a Seller (each a “Relevant Matter”):
(a) the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall Buyer must notify the Buyers in writing Sellers of any Relevant Matter as soon as reasonably practicable (and in any event within five Business Days) following it coming to the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject Buyer or to the following provisions notice of this Paragraph 6.3, any member of the Buyers shall Buyer’s Group;
(and where relevant, shall procure that b) the relevant Group Companies shall) take Buyer must give the Sellers or their duly authorised representatives such action assistance as the any Seller may reasonably require and the Buyer must ensure that each Target Group Company gives the Sellers and their advisers access to relevant employees and premises of such Target Group Company and access to (and permission to take copies of) all relevant documents and correspondence in order to allow the Sellers to investigate the Relevant Matter and take the actions referred to in this paragraph 6.1;
(c) the Buyer must ensure that such Target Group Company takes whatever action the Sellers request by notice in writing order to avoid, dispute, resist, defend, resistappeal, appeal compromise, mitigate or compromise remedy any Tax Claim Relevant Matter;
(a “Disputed Tax Claim”d) or any matter relating the Buyer must keep the Sellers fully informed as to the Disputed Tax Claim but only provided that progress of the Seller shall first Relevant Matter including the receipt of any material communications;
(e) if requested to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required do so by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this ScheduleSellers, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1must:
(i) fail within fifteen (15) Business Days allow, and ensure that such Target Group Company allows, the Sellers to serve notice on take sole conduct in the Buyers under Paragraph 6.3name of the Buyer or the Target Group Company of any actions that the Sellers consider appropriate in connection with the Relevant Matter; orand/or
(ii) fail within fifteen (15) Business Days to notify use, and ensure that such Target Group Company uses, professional advisers chosen by the Buyers Sellers in writing connection with the conduct of any further action actions relating to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the SellerRelevant Matter; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; orand
(f) that requires a the Buyer and such Target Group Company must not admit any liability or make or agree any payment or compromise in respect of any Relevant Matter without first obtaining the written consent of each of the Sellers.
6.2 The Buyer is entitled to take any action refuse to comply with the actions described in clause 6.1(c) to (e) unless it obtains an undertaking from the Sellers, agreeing to indemnify the Buyer and such Target Group Company against any person who is at costs, liability or losses that may result from the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or such Target Group Company complying with the terms of clause 6.1(c) to (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedulee).
Appears in 1 contract
Samples: Agreement for the Acquisition of Morgans Hotel Group Europe Limited (Morgans Hotel Group Co.)
Conduct of Claims. 6.1. If a any Buyer or a Group Company becomes aware of any matter which may result in a Tax claim being brought against it by another person (a “Third Party Claim”), including a Taxation Authority Claim, which may lead to a Claim, the Buyer shall or shall, and shall procure that the relevant each other Buyer Group Company shall within a reasonable time give notice to shall:
(a) make no admission of liability or settle or compromise the Seller of Third Party Claim without the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability prior consent in writing of the Seller under this Schedule.such consent not to be unreasonably withheld or delayed provided that it will take all reasonable action to mitigate any loss that may arise in respect of any resulting Claim;
6.2. If (b) for the duration of the Third Party Claim provide the Seller becomes aware of a Tax Claim, and its Agents with all reasonably material information relevant to the Seller shall notify the Buyers in writing as soon as reasonably practicable Third Party Claim (including reasonable access to premises and personnel at reasonable times with an advanced written notice and the Buyers right to examine and copy all relevant documents and records, at the Seller’s own cost and expense) and shall be deemed preserve all such information; and
(c) consult with, give such information and assistance to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing order to avoid, defend, dispute, defendmitigate, resistappeal, appeal settle or compromise the Third Party Claim, in each case at the Seller’s own cost and expense (even if any Tax Claim (such cost or expense is due on a “Disputed Tax Claim”) provisional basis under statutory rules), with the exception of any admission of liability or settlement or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses other action which it may suffer or incur as a result in an admission of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of any Buyer Group Company or its Agents, which may only be taken with the Seller under this Scheduleprior written consent in writing of Buyer, such consent not to be unreasonably withheld or delayed. In addition, in relation to Taxation Authority Claims, the Buyers Buyer shall, and shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimthat each other Buyer Group Company shall:
(a) promptly keep the Seller fully informed as to all material developments and provide to the extent that it would involve Seller copies of all material correspondence and full and accurate notes of any non-written communications with a Group Company contesting Taxation Authority;
(b) promptly notify the Seller of any Disputed Tax Claim intended material oral communication or any meeting with any Taxation Authority and allow the Seller or their representatives to participate in any such communication or meeting;
(c) not make any material communication with a Taxation Authority without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed); and
(d) promptly provide for the Seller’s review any: (i) draft correspondence or other document to be sent to any Taxation Authority (in any event, at least ten (10) Business Days before the relevant proposed date of submission to such Taxation Authority); and (ii) any submissions or other documents to be filed with any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between and shall make any amendments to such correspondence, instructions, submissions or other documents as the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupmay request.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (International Game Technology PLC)
Conduct of Claims. 6.1. 5.1 If a Buyer Purchaser or a any Target Group Company becomes aware of any Claim for Tax which gives or may give rise to a Tax Claim, the Buyer relevant Purchaser shall or shall procure that the relevant Target Group Company shall within a reasonable time give notice of the Claim for Tax to the Seller of the Tax Claim, provided always that the giving of Sellers’ Representative but such notice shall not be a condition precedent to the liability of the Seller Sellers under this Scheduleschedule 5.
6.2. 5.2 If the Seller becomes aware of a Tax ClaimSellers’ Representative so requests in writing, the Seller Purchasers shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, or shall procure that the relevant Target Group Companies shallCompany shall supply the Sellers’ Representative with such available and relevant details, documentation, correspondence and information relating to the relevant Claim for Tax and shall (subject to paragraph 5.3) take such action as the Seller Sellers’ Representative may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, compromise, defend or appeal or compromise against the Claim for Tax and any adjudication in respect of the Claim for Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller Sellers shall first (indemnify each Target Group Company and the relevant Purchaser to the Buyers’ reasonable satisfaction) indemnify satisfaction of the Buyers and/or the Group Companies (as required by the Buyers) relevant Purchaser against any losses, damages, reasonable costs or and expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)) which may be properly incurred as a consequence of any action taken in accordance with this paragraph 5.2.
6.4. Without prejudice 5.3 If the Sellers’ Representative does not request a Purchaser or any Target Group Company to take action pursuant to paragraph 5.2, or the Sellers fail to indemnify the relevant Purchaser or the relevant Target Group Company concerned as provided in that paragraph, within 21 days of the said notice to the liability of the Seller under this ScheduleSellers’ Representative, the Buyers Purchaser or relevant Target Group Company shall be free to pay or settle the Claim for Tax on such terms as they may in their absolute discretion think fit.
5.4 The Purchasers shall not be obliged to take or procure the taking of any the following action under Paragraph 6.3 in respect pursuant to paragraph 5.2:
5.4.1 agreeing to the settlement or compromise of any Claim for Tax Claim:
(a) or any proposal for the same which is likely to materially adversely affect the business or future liability to Tax of any Target Group Company, the Purchasers or any member of the Purchaser Group unless the Sellers indemnify the relevant Purchaser, Target Group Company or the relevant members of the Purchaser Group to the extent that it would involve a Group Company relevant Purchaser’s reasonable satisfaction;
5.4.2 contesting any Disputed Claim for Tax Claim before any court or other tribunal (excluding the first appellate body) unless, unless in at the expense of the Sellers, the Sellers’ Representative obtains the written opinion of tax Tax counsel of appropriate at least ten years’ call after disclosure of all relevant experience appointed by agreement between information and documents that contesting the Seller and Claim for Tax is reasonable in the Buyers or in default of agreement appointed by the President for the time being circumstances;
5.4.3 complying with any unreasonable instruction of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the BuyersSellers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupRepresentative.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 6.1 If a any Buyer or a Group Company becomes aware of any matter:
(a) which is reasonably likely to give rise to a Tax claim being made by a third party against a Buyer Group Company which will or is reasonably likely to give rise to a Relevant Claim (other than a Taxation Claim); or
(b) in respect of which any Buyer Group Company is or is reasonably likely to become entitled to recover from any third party any sum in respect of any loss, damage or liability which is or may become the subject of a Relevant Claim (other than a Taxation Claim), in each case, a Third Party Claim, then the following provisions of this paragraph 6 shall apply.
6.2 The Buyer shall shall, upon the Buyer, or shall procure that the relevant any Buyer Group Company shall within a becoming aware of the Third Party Claim, as soon as reasonably practicable, give written notice (containing reasonable time give notice details of the Third Party Claim) to the Seller of the Tax matter.
6.3 The Buyer shall not, and shall procure that no Buyer Group Company shall, make any admission of liability in respect of the Third Party Claim, provided always that or compromise or settle the giving Third Party Claim, without the prior written consent of the Seller, such consent not to be unreasonably withheld or delayed. Upon request, the Buyer shall provide to the Seller all details of all amounts recovered in respect of such Third Party Claim or shall confirm that there are none.
6.4 The Buyer shall, and shall procure that each Buyer Group Company shall:
(a) between the hours of 9:30 to 5:30 from Monday to Friday and on receiving no less than 3 Business Days’ notice shall not be a condition precedent to the liability of provide, the Seller under and the Seller's professional advisers with reasonable access to premises, personnel and to all relevant documents, records, correspondence, accounts and other information within the possession of any Buyer Group Company solely for the purpose of investigating the Third Party Claim;
(b) retain and preserve all relevant documents, records, correspondence, accounts and other information within the possession of any such persons which are or would reasonably be considered relevant in connection with the Third Party Claim for so long as any such actual or prospective Third Party Claim remains outstanding, provided that nothing in this Schedule.
6.2paragraph 6.4 shall require the Buyer or any Buyer Group Company to provide or allow access to such information that is reasonably regarded by the Buyer and its legal advisers as legally privileged in relation to any actual or potential Third Party Claim. If For the Seller becomes aware avoidance of a Tax Claimdoubt, the Seller shall notify the Buyers in writing as soon as reasonably practicable at all times keep confidential, and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that its representatives shall at all times keep confidential, all information obtained by it pursuant to this paragraph 6.4 (provided that the relevant Seller shall not be restricted from disclosing such information to the extent required in connection with any legal action or proceedings).
6.5 The Seller shall be entitled to copies of any of the documents, records and information referred to in paragraph 6.4(b) or, in the event that the Seller wants to insure against its liabilities in respect of any actual or prospective Third Party Claim, any information that a prospective insurer may reasonably require before effecting such insurance.
6.6 The Buyer shall, and shall procure that each Buyer Group Companies Company shall:
(a) take such action and institute such proceedings, and give such information and assistance, as the Seller may reasonably request by notice in writing to avoiddispute, disputeresist, appeal, compromise, defend, resist, appeal remedy or compromise mitigate the Third Party Claim or to enforce against any Tax Claim person (a “Disputed Tax Claim”other than the Seller) or the rights of any matter relating Buyer Group Company in relation to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any lossesThird Party Claim, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between and more generally co-operate with the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successits professional advisers; orand
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior proceedings related to the Closing; or
Third Party Claim (c) should other than against the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested use professional advisers nominated by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely and, if the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paidSeller so requests, unless payment has previously been made by permit the Seller to a have exclusive conduct of the negotiations and/or proceedings.
6.7 The Seller shall indemnify, to the Buyer's reasonable satisfaction, the Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a each Buyer Group Company against all costs and expenses which may reasonably be incurred by the Buyer and each Buyer Group Company in complying with its or their obligations under paragraphs 6.4 and 6.6.
6.8 Nothing in paragraph 6.3 and 6.6 or paragraph 8 shall permit the Sellers to take any action against any person who is at take, or require the time in question either an employee Buyer or director of any member of the Buyers’ Tax GroupBuyer’s Group to take or omit to take, or any company that is at action in relation to any Third Party Claim where, in the time in question a member opinion of the Buyers’ Tax Buyer, such action or omission could reasonably be expected to be materially prejudicial to the commercial interests and business (including its effect on the balance sheet) of the Target Group or the Buyer's Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Oxford Industries Inc)
Conduct of Claims. 6.1. 4.1 If a Buyer the Purchaser or a Group the Company becomes become aware of any Claim for Tax which gives or may give rise to a Tax Claim, the Buyer shall Purchaser shall, or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claimshall, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable (and in any event, in the Buyers shall be deemed case of the receipt of a Claim for Tax consisting of any assessment or demand for Tax or for which the time for response or appeal is limited, not less than five clear Business Days prior to have given the Seller day on which the time for response or appeal expires) give written notice of the Claim for Tax Claim on receipt of such notification for to the purpose of this Paragraph 6.2Warrantors.
6.3. Subject to 4.2 If the following provisions of this Paragraph 6.3Warrantors in writing reasonably require, the Buyers shall (and where relevantPurchaser shall, or shall procure that the Company shall, supply the Warrantors with such available and relevant Group Companies shall) details, documentation, correspondence and information and shall take such action as the Seller Warrantors may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, compromise, defend or appeal against the Claim for Tax and any adjudication in respect of the Claim for Tax provided that the Warrantors shall first indemnify the Company and the Purchaser to the reasonable satisfaction of the Purchaser against all reasonable costs and expenses which may be incurred in relation to the same.
4.3 The Warrantors shall have the right to have any action mentioned in paragraph 4.2 conducted by their nominated professional advisers provided that:
4.3.1 the appointment of such professional advisers shall be subject to the approval of the Purchaser (such approval not to be unreasonably withheld or compromise any Tax Claim (delayed and shall be deemed to be given in the event that the Purchaser does not within 15 days of request give a “Disputed fully reasoned, written response to a request for approval by the Warrantors);
4.3.2 the Warrantors keep the Purchaser fully informed of all matters known to them or to Warrantors' advisers, concerning the Tax Claim”) or any matter ;
4.3.3 the Warrantors provide the Purchaser with copies of all material documents and correspondence relating to the Disputed Tax Claim;
4.3.4 the Warrantors submit to the Purchaser for prior written approval (not to be unreasonably withheld or delayed) any material communication (written or otherwise) related to the Tax Claim but only provided that the Seller shall first (which is to be transmitted to the Buyers’ reasonable satisfaction) indemnify relevant Tax Authority; and
4.3.5 the Buyers Warrantors do not settle or compromise the Tax Claim or agree any matter in the conduct in the Tax Claim which is likely to materially increase the future Tax Liability of the Company and/or the Group Companies Purchaser without the Purchaser's prior written approval (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability not to Taxbe unreasonably withheld and delayed).
6.4. Without prejudice to 4.4 Where the liability of the Seller under this Schedule, the Buyers shall Warrantors Vendors have not be obliged to take or procure the taking assumed conduct of any action under pursuant to paragraph 4.3 above, the Purchaser shall keep the Warrantors fully informed of the progress in settling the relevant Claim for Tax and shall, as soon as reasonably practicable, forward, or procure to be forwarded to the Warrantors, copies of all material correspondence pertaining to it.
4.5 Paragraph 6.3 4.2 shall not apply in respect of any Tax Claim:
(a) 4.5.1 to the extent that it would involve a Group the Company contesting any Disputed Tax Claim before any court or other appellate body, body (excluding the authority or body which has made the Tax Claim) unless in the written opinion Tax Counsel (of tax counsel of appropriate relevant experience at least 10 years' experience) appointed by agreement between the Seller Warrantors and the Buyers or Purchaser opines, in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller writing, that an appeal is a reasonable course against the Claim in question will, on the balance of action given all the circumstances including the likelihood of success; orprobabilities, be won;
(b) 4.5.2 where the Tax Claim or action it derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time Vendors or by or of a Group the Company prior to Completion;
4.5.3 if the Closing; orWarrantors fail to comply in a material respect with their obligations under paragraph 4.3;
4.5.4 if within 15 clear Business Days (cor in the case of a Claim for Tax which involves a time limit as set out in paragraph 4.1, two clear Business Days prior to the day on which the time for response or appeal expires) should following the Seller, following Warrantors' receipt of written notice of the Tax Claim from a Buyer the Purchaser in accordance with Paragraph 6.1paragraph 4.1, the Warrantors:
(i) fail within fifteen (15) Business Days to serve notice on 4.5.4.1 do not request that the Buyers Purchaser or the Company takes any action under Paragraph 6.3paragraph 4.2; or
(ii) fail within fifteen (15) Business Days 4.5.4.2 fails to notify indemnify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from Purchaser and/or the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as appropriate), in which case the case may bePurchaser or the Company shall (without prejudice to the Purchaser's rights under this schedule) may satisfy be free to pay or settle the Tax Liability Claim on such terms as it may may, in its absolute discretion think fit without prejudice to any reasonable discretion, consider fit.
4.6 where the Purchaser or the Company reasonably believes that the action requested shall materially increase the future tax liability of the Buyers’ rights under this ScheduleCompany (including the use of any Accounts Relief or any Post Completion Relief) except to the extent that such action is in accordance with Tax legislation or accounting practice at such time.
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a Group Company 5.1 Subject to any obligations that the Purchaser may have under any applicable policy of insurance, if the Purchaser becomes aware that any claim has been made against the Company by a third party after Completion which is likely to result in the Purchaser being entitled to make a claim against the Warrantors by virtue of a Tax breach of any Warranty the Purchaser shall, and shall procure that the Company shall:
(a) give notice of such claim to the Warrantors as soon as reasonably practicable, but not later than 10 Business Days after becoming aware of such Claim, specifying in reasonable detail to the Buyer extent then available, the nature of the potential liability and so far as practicable, the likely amount of such third party claim;
(b) not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto without, where practicable, having first notified the Warrantors of its intention to do so;
(c) take such action as the Warrantors shall reasonably request to avoid, dispute, resist, compromise, defend or mitigate any such claim (other than any claim the avoidance, dispute, resistance, compromise, defence or mitigation of which would be likely to materially adversely affect the goodwill of the business of the relevant member of the Jump Group or any claim which seeks or in respect of which there has been granted injunctive relief) (and subject to the Company being entitled to employ its own legal advisers and being indemnified to its reasonable satisfaction by the Warrantors against all Losses incurred in connection with such claim) provided that the Warrantors shall jointly and severally indemnify and hold harmless all members of the Jump Group against all Losses incurred by any of them arising from any action taken by any member of the Jump Group at the request of the Warrantors pursuant to this paragraph 5; and
(d) consult as fully as is reasonably practicable with the Warrantors as regards the conduct of any proceedings arising out of such claim and keep the Warrantors reasonably informed of the progress of such third party claim.
5.2 Notwithstanding the preceding provisions of this Schedule, if at any time any of the Warrantors pay the Purchaser an amount in respect of any claim and the Purchaser and/or the Company subsequently becomes entitled to recover from any third party any sum in respect of the facts, matters or circumstances giving rise to the claim then the Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice take all necessary steps to enforce such recovery unless to do so would, in the opinion of the Purchaser (acting reasonably) be to the Seller material detriment of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability Company or any member of the Seller under this Schedule.
6.2Jump Group. If the Seller becomes aware of Purchaser and/or the Company shall at any time recover any sum from a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject third party which is referable to the following provisions of this Paragraph 6.3facts, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing matters or circumstances giving rise to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 claim in respect of which any Tax Claim:of the Warrantors have paid any sum to the Purchaser then provided that there are no outstanding claims or disputes between the Purchaser or either of them and the Warrantors or either of them (or, if there are any such disputes or claims, following the final adjudication or settlement of them):
(a) if the amount paid by the Warrantors in respect of the claim is more than the Sum Recovered, the Purchaser shall immediately pay to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in Warrantors the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successSum Recovered; orand
(b) where if the Tax Claim or action derives from or arises out of or is amount paid by the Warrantors in connection with any dishonest or fraudulent act or omission or willful default by or respect of the Seller at any time claim is less than or by or of a Group Company prior equal to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinionSum Recovered, the action requested by Purchaser shall immediately pay to the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of Warrantors an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of amount paid by the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.Warrantors;
Appears in 1 contract
Conduct of Claims. 6.1. If 14.1 In case of an issue, matter or fact potentially giving rise to a Buyer Claim, the Party seeking damages or indemnification under this Agreement (the “Indemnitee”) from the other Party (the “Indemnitor”) shall (i) within reasonable promptness and in no case later than within a Group Company period of one month after the Indemnitee becomes aware of the matter, give written notice to the Indemnitor of the Breach, state the circumstances of the Breach in reasonable detail, furnish reasonable proof as it has in its possession of the Breach and, to the extent then feasible, set forth the estimated amount of such Breach and (ii) shall grant the Indemnitor the opportunity to remedy the Breach within a Tax reasonable period of time of at least 45 Business Days, provided, that the failure of the Indemnitee to give written notice to the Indemnitor within a period of one month shall relieve the Indemnitor from the indemnification obligations herein unless the Indemnitor is not actually prejudiced as a result of the failure to give such notice.
14.2 If claims are raised, legal or administrative proceedings commenced or threatened to be commenced against the Indemnitee by a third party, including government agencies (a “Third Party Claim”), which may give rise to a Claim, the Buyer Indemnitee shall or notify the Indemnitor in compliance with Section 14.1 of such Third Party Claim. The Indemnitee shall procure ensure that the Indemnitor shall (i) be provided with all materials, information (as it has in its possession) and assistance relevant Group Company shall within a reasonable time give notice in relation to the Seller Third Party Claim, (ii) be given reasonable opportunity to comment or discuss with the Indemnitee any measures which the Indemnitor proposes to take or to omit in connection with a Third Party Claim, and (iii) in particular, the Indemnitor shall be given an opportunity to comment on, participate in, and review any reports on social security audits, disputes or appeals or other measures and shall receive without undue delay copies of all relevant notices (Bescheide) of any authority.
14.3 If and to the extent the Indemnitor depends on the cooperation of the Tax ClaimIndemnitee, provided always the Indemnitee shall, to the extent legally possible for the Indemnitee, at the request and expense of the Indemnitor, take all reasonable steps the Indemnitor may reasonably request from the Indemnitee in that respect.
14.4 No admission of a Third Party Claim shall be made by or on behalf of the giving of such notice Indemnitee and the Third Party Claim shall not be a condition precedent to disposed of (erledigt) or settled (verglichen) without the liability prior written consent of the Seller under this ScheduleIndemnitor, which consent shall not be unreasonably withheld.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers 14.5 The Indemnitor shall be deemed entitled at its own expense and its absolute discretion to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing Indemnitor shall deem necessary or appropriate to avoid, dispute, deny, defend, resist, appeal appeal, compromise or compromise any Tax contest such Third Party Claim (a “Disputed Tax Claim”including making counter claims or other claims against third parties) or any matter relating in the name of and on behalf of the Indemnitee, provided, however, that the In- demnitor prior to such action has acknowledged in writing to the Disputed Tax Claim but only provided Indemnitee that the Seller shall first (to the Buyers’ reasonable satisfaction) Indemnitee will indemnify the Buyers and/or Indemnitee from such Third Party Claim. The Indemnitee shall give all such information and assistance, as described above, including access to premises and personnel and the Group Companies (right to examine and copy or photograph any assets, accounts, documents and records as required the Indemnitor or its professional advisors may from time to time request. The Indemnitor agrees to keep all such information confidential and only to use it for such purpose.
14.6 To the extent that the Indemnitor is in breach of a guarantee, breach of a covenant or in case of an indemnification all costs and expenses incurred by the Buyers) against Indemnitor in defending such claim shall be borne by the Indemnitor; if it turns out that the Indemnitor was not in breach, any losses, damages, costs or and expenses which reasonably incurred by it may suffer or incur as a result of taking such action in connection with the defence (including any additional liability to Tax)adviser’s fees and internal costs of its staff) shall be borne by the Indemnitee.
6.4. Without prejudice 14.7 The failure of any Indemnitee to comply with the liability obligations of the Seller Indemnitee under this ScheduleSection 14 shall release any Indemnitor from its obligation to pay damages or to indemnify under this Agreement, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) if and to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court such damage or other appellate body, unless in indemnification amount was directly caused by such failure to comply with the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being obligations of the Institute Indemnitee under this Section 14.
14.8 Any payments of Chartered Accountants in England and Wales upon the application of either Indemnitor to the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is Indemnitee in connection with any dishonest or fraudulent act or omission or willful default by or this Section 14 shall be considered as an adjustment of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupPurchase Price.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 6.1 If a Buyer the Purchaser or a Group the Company becomes has notice or is otherwise aware of any Claim for Tax which gives or may give rise to a Tax Claim, Claim the Buyer Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claimforthwith, provided always that the giving of such notice shall but not be as a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware making of a Tax Claim, (and in any event, in the Seller shall notify case of the Buyers in writing as soon as reasonably practicable and receipt of a Claim for Tax consisting of any assessment or demand for Tax or for which the Buyers shall be deemed time for response or appeal is limited, not less than ten clear Business Days prior to have given the Seller day on which the time for response or appeal expires) give written notice of the Claim for Tax Claim on receipt of such notification for to the purpose of this Paragraph 6.2Covenantor.
6.3. Subject to 6.2 If the following provisions of this Paragraph 6.3Covenantor in writing reasonably requires, the Buyers Purchaser shall (and where relevant, or shall procure that the Company shall supply the Covenantor with such available and relevant Group Companies shalldetails, documentation, correspondence and information and shall (subject to sub-clause 6.3 below) take such action as the Seller Covenantor may reasonably request by notice in writing to avoid, dispute, defend, resist, negotiate avoid dispute resist compromise defend or appeal against the Claim for Tax and any adjudication in respect thereof PROVIDED THAT the Covenantor shall first indemnify the Company and the Purchaser against the Tax Liability for which the Covenantor is liable under this Deed.
6.3 The Purchaser shall procure that the Company shall:
6.3.1 make no settlement or compromise of the dispute without the prior approval of the Covenantor, which approval shall not be unreasonably withheld or delayed; and
6.3.2 not take any action or omit from doing any thing which it would not have done (or omitted from doing) had this deed not existed unless required by law or a Tax Authority to do so; and
6.3.3 do nothing or omit to take any action which would increase the Tax Liability for which the Covenantor is or may be liable under this deed other than any act or omission in the ordinary course of business of the Company or anything expressly provided for in this Deed, the Agreement or in the Audited Accounts.
6.4 The Purchaser shall keep the Covenantor fully informed of the progress in settling the relevant Claim (a “Disputed for Tax Claim”) and shall as soon as reasonably practicable forward, or any matter relating procure to be forwarded to the Disputed Tax Claim but only provided that the Seller shall first (Covenantor copies of all material correspondence pertaining to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)it.
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers 6.5 The Purchaser shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimthe following actions pursuant to sub-clause 6.2:
(a) to the extent that it would involve a Group Company 6.5.1 contesting any Disputed Claim for Tax Claim before any court or other appellate bodybeyond the Court of Appeal (excluding for the avoidance of doubt the General Commissioners of Inland Revenue, the Special Commissioners of Inland Revenue or the Value Added Tax and Duties Tribunal in the United Kingdom (and any equivalent thereof outside the United Kingdom) unless in the Covenantor obtains the written opinion of leading tax counsel to the effect that the appeal in question will, on the balance of appropriate relevant experience appointed probabilities, succeed;
6.5.2 any action whatsoever requested by agreement between any receiver, administrator or trustee in bankruptcy;
6.5.3 any action or procure that the Seller and Company take any action if such action would have a materially adverse effect on the Buyers or in default amount of agreement appointed tax payable by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer Purchaser or the Seller an appeal Company in respect of a period after Completion.
6.6 If it is a reasonable course of action given all alleged that any Covenantor (at any time) or the circumstances including the likelihood of success; or
Company (bprior to Completion) where the Tax Claim or action derives from or arises out of or is in connection with has committed any dishonest or fraudulent act or omission constituting fraudulent or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company negligent conduct relating to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does sub-clause 6.2 shall not apply by virtue of and the Covenantor shall cease to have any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Scheduleright thereunder.
Appears in 1 contract
Conduct of Claims. 6.1. 13.1 If a Buyer or a Group Company the Purchaser becomes aware of that any claim has been made against it by a Tax third party after Closing (“Third Party Claim, ”) that is likely to result in the Buyer shall or shall procure that the relevant Group Company shall within Purchaser being entitled to make a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of claim against the Seller under this Schedule.Agreement:
6.2. If 13.1.1 the Seller becomes aware of a Tax ClaimPurchaser shall give, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed practicable, but not later than [***], a notice in writing to have given the Seller notice of setting out such information as is reasonably available to the Tax Claim on receipt Purchaser as is reasonably necessary to enable the Seller to assess the merits of such notification for claim; 150175318_3
13.1.2 the purpose of this Paragraph 6.2.
6.3. Subject Purchaser shall provide to the following provisions Seller, subject to reimbursement of this Paragraph 6.3all reasonable costs and expenses, the Buyers shall (all information, access and where relevant, shall procure that the relevant Group Companies shall) take such action assistance as the Seller may reasonably request by notice in writing as necessary for the purposes of investigating the matter forming the subject of such claim (including access to the Site);
13.1.3 the Purchaser shall take any action that the Seller shall reasonably request to avoid, dispute, defend, resist, appeal resist or compromise any Tax the Third Party Claim (a “Disputed Tax Claim”) other than any Third Party Claim the defence of which may adversely affect the business of the Purchaser or its general reputation on the respective markets which the Purchaser or its Affiliates possesses in the business community and society, or any matter relating to the Disputed Tax Third Party Claim but only that seeks or in respect of which there has been granted injunctive relief), provided that the Seller shall first (to indemnify and hold harmless the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required Purchaser against all Losses incurred by it arising from any action taken by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result Purchaser at the request of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 this Section;
13.1.4 the Purchaser shall consult as fully as is likely to affect materially and adversely reasonably practicable with the liability of a Buyer or a Group Company to Tax or Seller as regards the business or financial interests conduct of any proceedings arising out of themthat Third Party Claim; orand
13.1.5 the Purchaser shall allow the Seller, at its election (ein writing), to take over the conduct of the Third Party Claim, in which case:
13.1.1 the Purchaser shall (A) if a Group Company would be required delegate the conduct of any proceedings in respect of the Third Party Claim to appeal against any assessment or demand for Tax where it is a requirement for the Seller; and (B) retain such an appeal that the Taxation be paid, unless payment has previously been made legal advisers as nominated by the Seller to a Buyer act on behalf of an amount equal the Purchaser in relation to the Third Party Claim in accordance with the Seller’s instructions (provided that the Purchaser is entitled to engage its own separate legal advisers at its own cost and expense); and
13.1.2 the Purchaser shall procure that its Affiliates and representatives shall provide such Taxation information, access and assistance as the Seller or the appointed legal advisers may reasonably require in respect of it; orconnection with the Third Party Claim (including access to the Site).
(f) that requires a Group Company to take 13.2 Nothing in this Section 13 shall require the provision by any action against any person who is at the time in question either an employee or director Person of any member information to the extent such provision would (i) contravene any applicable Law or regulation or would breach any statutory or contractual duty of confidentiality owed to any third party; (ii) concern any trade secret of the Buyers’ Tax Group, Purchaser or any company that is at the time in question a member Affiliate of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of Purchaser; or (iii) have any provision in Paragraph 6.4, material adverse effect on the relevant Buyer Purchaser or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any Affiliate of the Buyers’ rights under this SchedulePurchaser.
Appears in 1 contract
Conduct of Claims. 6.112.2.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer This clause 12.2 shall or shall procure that the relevant Group Company shall within a reasonable time give notice apply to the Seller conduct by a PLPA from whom an indemnity is sought under this Agreement (“the Indemnifier”) in respect of claims made by a third person against a PLPA having or claiming to have the benefit of the Tax Claim, provided always that indemnity (“the giving Beneficiary”) and conduct by the Beneficiary in respect of such notice claims, but shall not be a condition precedent apply only to the liability extent compatible with the requirements of the Seller under this Scheduleany relevant insurer.
6.212.2.2. If the Seller becomes aware of a Tax ClaimBeneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Seller Beneficiary is or may become entitled to indemnification under this Agreement the Beneficiary shall notify the Buyers give notice in writing to the Indemnifier as soon as reasonably practicable and in any event within five (5) Working Days of the Buyers receipt by the Beneficiary of such notice, demand, letter or other document.
12.2.3. Subject to clauses 12.2.4, 12.2.5, 12.2.7 and 12.2.8 and the giving of notice by the Beneficiary, the Indemnifier shall be deemed entitled (subject to have given providing the Seller notice Beneficiary with an indemnity against all costs and expenses that the Beneficiary may incur by reason of such action within ten (10) Working Days of the Tax Claim on receipt of such notification for notice from the purpose Beneficiary by the Indemnifier) to dispute the claim in the name of this Paragraph 6.2.
6.3. Subject to the following provisions Beneficiary and take conduct of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoidany defence, dispute, defendcompromise or appeal of the claim and of any incidental negotiations. If the Indemnifier so elects to take conduct of the claim, the Beneficiary shall give the Indemnifier all reasonable co-operation, access and assistance for the purposes of considering and resisting the claim.
12.2.4. With respect to any claim conducted by the Indemnifier, the Indemnifier shall keep the Beneficiary fully informed and consult with it about all material elements of the conduct of the claim and shall not bring the name of the Beneficiary into disrepute.
12.2.5. If the Indemnifier does not elect under clause 12.2.3 to take conduct of a claim or if the Indemnifier and the Beneficiary at any time agree that the Beneficiary should henceforth have conduct of the claim, then the Beneficiary shall be entitled to conduct the claim and to resist, appeal appeal, compromise or compromise settle the claim. With respect to any Tax Claim (a “Disputed Tax Claim”) claim conducted by the Beneficiary, the Beneficiary shall keep the Indemnifier fully informed and consult with it about all material elements of the claim.
12.2.6. Any PLPA who is under an obligation to consult with another PLPA under clause 12.2.4 or clause 12.2.5 shall have regard in good faith to any matter relating views expressed by the other PLPA.
12.2.7. If the Indemnifier pays to the Disputed Tax Claim but only provided that Beneficiary an amount in respect of an indemnity and the Seller shall first (Beneficiary subsequently recovers a sum which is directly referable to the Buyers’ reasonable satisfaction) indemnify fact, event, matter or circumstances giving raise to the Buyers and/or claim under the Group Companies (as required indemnity, then the Beneficiary shall pay to the Indemnifier whichever is the lesser of the amount paid by the Buyers) against any losses, damages, costs Indemnifier or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)the sum recovered by the Beneficiary.
6.412.2.8. Without prejudice to the liability Any Party taking any of the Seller under this Schedule, steps mentioned in clauses 12.2.1 to 12.2.7 shall comply with the Buyers shall not be obliged to take or procure the taking requirements of any action under Paragraph 6.3 insurer, who may have an obligation to provide an indemnity in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being liability of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupIndemnifier.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Inter Council Agreement
Conduct of Claims. 6.113.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer The Purchasers shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable after it or any member of the Purchasers’ Group becomes aware of a Claim or any matter or circumstance that will or may give rise to a Claim give written notice to the Seller. The notification of the Purchasers shall contain all known details of such Claim including the Purchasers’ estimate of the amount of the Claim, an indication as to whether any insurance cover or third party recourse would be available in respect of the Claim and the Buyers shall be deemed all other information reasonably necessary to have given enable the Seller notice to assess the merits of the Tax Claim on receipt of such notification Claim. However, no obligation exist for the purpose of this Paragraph 6.2Purchasers to provide the Seller with any Due Diligence Reporting.
6.313.2. Subject If the Purchasers fail to notify the following provisions Seller within 30 Business Days after it or the relevant member of this Paragraph 6.3the Purchasers’ Group becomes aware of a Claim or any matter or circumstance that will or may give rise to a Claim as set out in Clause 13.1, the Buyers Seller shall (not be liable in relation to such Claim.
13.3. Upon notification of a Claim pursuant to Clause 13.1 the Purchasers shall:
13.3.1. allow the Seller or its representatives access to books, records and where relevant, shall procure that to such personnel of the relevant Purchaser’s Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoidinvestigate the Claim, disputeall except for any Due Diligence Reporting;
13.3.2. disclose to the Seller or its representatives all information and documents relevant to the Claim, defend, resist, appeal or compromise all except for any Tax Due Diligence Reporting; and
13.3.3. take such steps as the Seller may reasonably request pursuant to Clause 13.4.
13.4. If a Claim (a “Disputed Tax Claim”) or any matter relating or circumstance that gives or may give rise to a Claim notified pursuant to Clause 13.1 relates to a Third Party Claim, then:
13.4.1. the Seller may at any time, by a written notice to the Disputed Tax Purchasers, at its own expense take over the defense of the Third Party Claim but only provided that the Seller shall first (agrees to indemnify the Purchasers for any costs, charges and expenses arising from such Third Party Claim and all damages resulting there from and seeks the assistance of a legal advisor who has the relevant experience and is reasonably acceptable to the BuyersPurchasers. If the Seller takes over the defence the Purchasers shall, and shall procure that the Purchasers’ reasonable satisfactionGroup shall:
(A) indemnify leave the Buyers and/or conduct of the Group Companies Third Party Claim entirely to the Seller (which entails, for the avoidance of any doubt, that Seller has the right to settle the relevant Third Party Claim), provided that it shall keep the Purchasers updated and consult with the Purchasers on the strategy and direction of its defence on a regular basis;
(B) give the Seller all assistance necessary to conduct the Third Party Claim on its behalf or on behalf of the relevant member of the Purchasers’ Group, including the granting of powers of attorney; and
(C) allow the Seller and its representatives access and disclose to the Seller and its representatives information and documents as required by set out in the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)Clauses 13.3.1 and 13.3.2.
6.413.5. Without prejudice to Clause 13.4 the liability of Purchasers shall have the Seller under this Scheduleright to settle, at their own expense and with their own professional advisors, any Third Party Claim, provided no settlement shall be made without the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) Seller’s prior written consent. Such consent is a condition to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is Seller’s liability in connection with any dishonest or fraudulent act or omission or willful default by or of a Third Party Claim and the Seller at any time or by or of settlement thereof. The Purchasers shall conduct negotiations, if any, relating to a Group Company prior to the Closing; or
(c) should Third Party Claim in consultation with the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If a Buyer or a any Buyer's Group Company becomes aware of any matter which is reasonably likely to give rise to a Claim or upon any Claim being made other than a Claim under the Tax Claim, Deed (to which Clause 6 of the Tax Deed shall apply) the following provisions shall apply:
4.1.1 the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time as soon as reasonably practicable give detailed written notice to the Seller of the Tax Claim, provided always that matter and shall consult with the giving of such notice Seller with respect to the matter;
4.1.2 the Buyer shall not be a condition precedent to make, and shall procure that no other Buyer's Group Company shall make, any admission of liability in respect of or compromise or settle the liability matter without the prior written consent of the Seller under this Schedule.(such consent not to be unreasonably withheld or delayed);
6.2. If 4.1.3 (subject to the Seller becomes aware undertaking to maintain the confidentiality of a Tax Claim, the same) the Buyer shall make available to the Seller shall notify at the Buyers Seller's expense and upon reasonable notice and in writing such manner as soon as reasonably practicable does not materially disrupt the business of the Buyer or any of the Buyer's Group Companies, all relevant details documentation and correspondence in relation to such Claim and by prior arrangement and during normal business hours permit the Buyers shall be deemed Seller to inspect the relevant accounts, books and records of the Company or the Subsidiary and to have given the Seller notice of the Tax Claim on receipt of access to such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action information as the Seller may reasonably request by notice require in writing order to avoidinvestigate fully the merits of such claim.
4.1.4 the Buyer shall, disputeand shall procure that each Buyer's Group Company, defendretains and preserves all relevant assets, resistdocuments, appeal records and information within the power, possession or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter control of the Buyer's Group Company relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers Subsidiary which are or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is are reasonably likely to be relevant in connection with any dishonest Claim for so long as any actual or fraudulent act or omission or willful default by or of prospective Claim remains outstanding;
4.1.5 the Seller shall at any time or by or of a Group Company prior its own cost be entitled to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests copies of any of them; or
(e) if a Group Company would be required the details documentation, correspondence, accounts, books, records and information referred to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.paragraph 4.1.3
Appears in 1 contract
Samples: Agreement to Buy and Sell (Take Two Interactive Software Inc)
Conduct of Claims. 6.1. 4.1 If a the Buyer or a Group the Company becomes aware of any Claim for Tax which gives or may give rise to a Tax Claim, the Buyer shall shall, or shall procure that the relevant Group Company shall within shall, forthwith (and in any event, in the case of the receipt of a reasonable Claim for Tax consisting of any assessment or demand for Tax or for which the time for response or appeal is limited, not less than ten clear Business Days prior to the day on which the time for response or appeal expires) give written notice of the Claim for Tax to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this ScheduleRepresentative.
6.2. 4.2 If the Seller becomes aware of a Tax ClaimRepresentative reasonably requires in writing, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3Buyer shall, the Buyers shall (and where relevant, or shall procure that the Company shall, supply the Seller Representative with such available and relevant Group Companies shall) details, documentation, correspondence and information which is in the possession of the Buyer or the Company and shall take such action as the Seller Representative may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, compromise, defend or appeal or compromise against the Claim for Tax and any adjudication in respect of the Claim for Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller Warrantors shall first (indemnify the Company and the Buyer to the Buyers’ reasonable satisfactionsatisfaction of the Buyer against all reasonable costs and expenses which may be incurred in relation to the same.
4.3 The Seller Representative shall not be entitled to require the Company to delegate the conduct of any action referred to in paragraph 4.2 of this Part of Schedule 7 to the Warrantors but shall however be entitled to have such action be conducted by their nominated professional advisers provided that the appointment of such professional advisers shall be subject to the approval of the Buyer (such approval not to be unreasonably withheld or delayed) and shall be deemed to be given in the event that the Buyer does not give a reasoned written response to a request for approval by the Seller Representative.
4.4 If the Seller Representative does not request the Buyer or the Company to take action pursuant to paragraph 4.2 of Schedule 7 part 4 within fourteen days of the said written notice to the Seller Representative or the Warrantors fail to indemnify the Buyers and/or Buyer or the Group Companies (Company concerned as required by provided in that paragraph within a reasonable period in the Buyers) against any losseslight of the nature of the Claim for Tax, damages, costs the Buyer or expenses which it the Company shall be free to pay or settle the Claim for Tax on such terms as they may suffer or incur as a result of taking such action (including any additional liability to Tax)in their reasonable discretion think fit without effecting its rights under the Schedule.
6.4. Without prejudice 4.5 The Buyer shall keep the Seller Representative informed of the progress in settling the relevant Claim for Tax and shall, as soon as reasonably practicable, forward or procure to be forwarded to the liability Warrantors extracts of all material correspondence pertaining to it which, for the Seller under this Scheduleavoidance of doubt, the Buyers will only be used in defending a Claim for Tax.
4.6 The Buyer shall not be obliged to take or procure the taking of any the following action under Paragraph 6.3 in respect pursuant to paragraph 4.2 of this Schedule 7 part 4:
4.6.1 agreeing to the settlement or compromise of any Claim for Tax Claim:
(a) or any proposal for the same which is likely to affect the amount involved or future liability to Tax of the Company, the Buyer or any member of the Buyer’s Group unless the Warrantors indemnify the Buyer or the Company to the extent that it would involve a Group Company Buyer’s reasonable satisfaction against any such future liability to Tax; and
4.6.2 contesting any Disputed Claim for Tax Claim before any court or other appellate bodybody (excluding the General Commissioners of HM Revenue and Customs, the Special Commissioners of HM Revenue and Customs or the Value Added Tax Tribunal in the UK, the IRS Appeals Office in the US and any equivalent of any such body outside the UK) unless in at the sole expense of the Warrantors, the Seller Representative obtains the written opinion of tax Tax counsel of appropriate at least five years call (or equivalent with respect to Tax outside the United Kingdom) after disclosure of all relevant experience appointed by agreement between information and documents and having regard to all the Seller and circumstances that on the Buyers balance of probabilities the action will succeed or in default of agreement appointed by contesting the President Claim for Tax is the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable right course of action given all for the circumstances including purpose of obtaining a favourable settlement with the likelihood of success; orrelevant Tax Authority.
4.7 If it is alleged by any Tax Authority in writing that any Warrantors (bat any time) where or the Tax Claim or action derives from or arises out of or is in connection with Company (prior to Completion) has committed any dishonest or fraudulent act or omission constituting fraudulent or willful default by or gross negligent conduct relating to Tax the subject of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the subsisting Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing paragraph 4.2 of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does this Schedule 7 part 4 shall not apply by virtue of and the Warrantors shall cease to have any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights right under this Schedulethat paragraph.
Appears in 1 contract
Samples: Exhibit (Ems Technologies Inc)
Conduct of Claims. 6.1. 4.1 If a Buyer the Purchaser or a Group the Company becomes aware of any Claim for Tax which gives or may give rise to a Tax Claim, the Buyer shall Purchaser shall, or shall procure that the relevant Group Company shall as soon as reasonably practicable give written notice of the Claim for Tax to the Warrantors.
4.2 The Purchaser shall, or shall procure that the Company shall, supply the Warrantors with such available and relevant details, documentation, correspondence and information and shall take such action as the Warrantors may reasonably request in writing to negotiate, avoid, dispute, resist, compromise, defend or appeal against the Claim for Tax and any adjudication in respect of the Claim for Tax provided that the Warrantors shall first indemnify the Company and the Purchaser to the reasonable satisfaction of the Purchaser against all reasonable costs and expenses which may be incurred in relation to the same and provided further that:-
4.2.1 neither the Purchaser nor the Company shall be obliged to comply with any request of the Warrantors that involves contesting any claim for tax before any tribunal, court or appellate body, excluding the General Commissioners of HM Revenue and Customs, the Special Commissioners of HM Revenue and Customs or the Value Added Tax Tribunal, unless Tax counsel of appropriate standing instructed by agreement between the Purchaser and the Warrantors (and with the Purchaser approving the Instructions to Counsel and being invited to any conference with Counsel) and at the sole expense of the Warrantors has recommended that course of action in writing;
4.2.2 neither the Purchaser nor the Company shall be obliged to take any step which it reasonably considers would be materially prejudicial to the Tax affairs of the Purchaser or the Company or their dealings with any Tax Authority and, where the Warrantors have conduct of the claim for tax pursuant to paragraph 4.2.4 below, the Warrantors shall not take any step which either the Purchaser or the Company reasonably considers to be so prejudicial;
4.2.3 the provisions of this paragraph 4.2 shall not apply to any Tax Claim where any Tax Authority alleges fraudulent conduct or conduct involving dishonesty on the part of the Company or any person acting on its behalf in relation to the matter giving rise to the claim;
4.2.4 the Warrantors shall not be entitled to conduct negotiations and proceedings in respect of the claim for tax in the name of the Company save where the claim relates to a liability within paragraph 1.5, 1.6 or 1.7 of Part 3 in which case the following shall apply:-
4.2.4.1 the Warrantors shall keep the Purchaser fully informed of the progress of the claim for tax;
4.2.4.2 the Purchaser promptly receives copies of all written correspondence with any Tax Authority insofar as it is relevant to the claim for tax;
4.2.4.3 the Purchaser is invited to any meeting which the Warrantors or their agents attend with any representative of a Tax Authority which relates to the claim for tax;
4.2.4.4 the Purchaser is afforded the opportunity to comment within a reasonable period of time give on any correspondence, return or other document prior to its submission to the relevant Tax Authority and the Warrantors shall take into account such comments so far as they are reasonable;
4.2.4.5 no correspondence, return or other document is submitted to a Tax Authority which is not, so far as the Warrantors are aware, complete, true and accurate in all respects;
4.2.4.6 no correspondence is submitted to, or any agreement reached with, any Tax Authority without the prior approval of the Purchaser (such approval not to be unreasonably withheld or delayed); and
4.2.4.7 the Warrantors shall not take any steps which the Purchaser reasonably considers would be materially prejudicial to the Tax Affairs of the Purchaser or the Company or their dealings with any Tax Authority;
4.2.5 a Warrantor's rights under this Clause 4 cease if that Warrantor is declared bankrupt.
4.3 The Purchaser shall keep the Warrantors fully informed of the progress in settling the relevant Claim for Tax and shall, as soon as reasonably practicable, forward, or procure to be forwarded to the Warrantors, copies of all material correspondence pertaining to it.
4.4 If the Warrantors do not request the Purchaser to take any action under this Clause within 28 days of notice to the Seller Warrantors or no action is required to be taken by virtue of any of the Tax Claim, provided always that provisions of this Clause the giving Purchaser shall be free to satisfy or settle the relevant claim for tax on such terms as it may in its absolute discretion think fit.
4.5 The compliance of such notice the Purchaser and/or the Company with the provisions of this Clause shall not be a condition precedent to the liability of the Seller under this ScheduleWarrantors.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 6.1 If a the Buyer or a Group Company becomes aware of any Claim for Taxation which could give rise to a Tax Claim, claim being made by the Buyer shall under this Schedule or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller warranties contained in Clause 9 of Schedule 8 of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller Agreement it shall notify the Buyers in writing Seller as soon as reasonably practicable practicable.
6.2 The Buyer agrees (if the Seller indemnifies and secures the Buyer and the Buyers shall be deemed Company or any of its Subsidiaries to have given the Seller notice reasonable satisfaction of the Tax Claim on receipt Buyer against any loss, liability, costs or damages which may thereby be incurred including the Taxation the subject matter of such notification for the purpose of this Paragraph 6.2.
6.3. Subject Claim) to the following provisions of this Paragraph 6.3, the Buyers shall (take and where relevant, shall procure that the relevant Group Companies shall) Company or any of its Subsidiaries shall take such action and give such information and assistance as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating for Taxation notified to the Disputed Tax Claim but only provided that Seller in accordance with paragraph 6.1.
6.3 The action which the Seller may request under paragraph 6.2 shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either include the Buyer or the Company or any of its Subsidiaries applying to postpone (so far as legally possible) the payment of any Taxation and allowing professional advisers nominated by the Seller an appeal is a reasonable course (subject to approval by the Buyer, such approval not to be unreasonably withheld or delayed) to take over at the Seller's own expense the conduct of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is negotiations and proceedings in connection with the Claim for Taxation.
6.4 The Seller shall keep the Buyer fully informed as to any dishonest action taken or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action postponed to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from in conjunction with the Seller; or
(d) if, conduct of all negotiations and proceedings of whatever nature arising in connection with the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially such dispute and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation all other relevant matters and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.shall supply to
Appears in 1 contract
Conduct of Claims. 6.1. 9.1 If a the Buyer or a Group the Company becomes aware after Completion of a Tax ClaimClaim or any other matter which may give rise to a claim against the Seller under paragraph 2 of this Schedule, the Buyer shall as soon as reasonably practicable thereafter give written notice of the Tax Claim or shall procure that the relevant Group Company shall within a reasonable time give notice other matter to the Seller of the Tax Claim, provided always that the giving of such notice shall will not be a condition precedent to the liability of the Seller Sellers under this Scheduleparagraph 2.
6.2. If 9.2 Subject to paragraph 9.4 and provided that the Seller becomes aware indemnifies and secures (by way of a Tax Claimmonies on account) the Company and the Buyer to the reasonable satisfaction of the Buyer against all losses, costs, damages and expenses (including interest or surcharge on overdue Taxation) which may be incurred thereby, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall Buyer will procure that the relevant Group Companies shall) take Company, at the Seller’s cost and expense, takes such action and gives such information and assistance in connection with the Taxation affairs of the Company as the Seller may reasonably and promptly request by notice in writing to avoid, the Buyer to dispute, defendappeal against, resist, appeal settle or compromise any Tax Claim Claim, including applying to postpone (a “Disputed so far as legally possible) the payment of any Taxation but not including allowing the Seller or its advisors to take on or take over the conduct of any Dispute.
9.3 Subject to paragraphs 9.4 and 9.5, and to compliance by the Sellers with paragraph 9.2 in relation to any Dispute, the Buyer will not, and will procure that the Company will not, without the prior written consent of the Seller, such consent not to be unreasonably withheld or delayed:
9.3.1 transmit any communication (whether written or otherwise) to any Taxation Authority;
9.3.2 settle or compromise the relevant Tax Claim”) or ; or
9.3.3 agree any matter relating which is likely to adversely affect the Disputed amount of the relevant Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)Claim.
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall 9.4 The Buyer will not be obliged required to take or procure that the taking of Company will take any action under Paragraph 6.3 mentioned in respect paragraph 9.2:
9.4.1 which it considers to be materially prejudicial to the Taxation affairs of any the Company or the Buyer; or
9.4.2 which involves contesting a Tax Claim beyond the first appellate body (excluding the Taxation Authority which has made the Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written jurisdiction concerned unless the Seller obtains (at the Seller’s cost and expense) the opinion of tax counsel of appropriate relevant experience appointed by agreement between at least five years’ call that it is reasonable in all circumstances to make such an appeal.
9.5 If the Seller fails promptly (and the Buyers or in default of agreement appointed by the President for the time being any event within 10 Business Days of the Institute of Chartered Accountants in England and Wales upon Buyer giving notice requiring the application of either Sellers to do so) to inform the Buyer or of any action which the Seller an appeal is a reasonable course of action given all wishes the circumstances including Buyer to procure the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4under paragraph 9.2, the relevant Buyer will be entitled to procure that the Company settles or Group Company (as the case may be) may satisfy or settle the compromises any Tax Liability Claim on such terms as it may determines in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedulediscretion.
Appears in 1 contract
Samples: Share Purchase Agreement (Southern Graphic Systems, Inc.)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the 6.1 The Buyer shall or shall procure that give notice to the relevant Group Company shall Tax Covenantor within a reasonable time of receipt of any Relevant Tax Claim, but no failure to give such notice to shall affect the Seller obligations of the Tax Claim, provided always that the giving Covenantor under Part III of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. 6.2 If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers so requested in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of by the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject Covenantor and subject to the following provisions of this Paragraph 6.3, paragraphs 6.3 and 6.4 the Buyers Buyer shall (and where relevant, shall take or procure that the relevant Group Companies shall) take Company, at the Tax Covenantor’s cost and expense, takes such action as the Seller Tax Covenantor may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, compromise or compromise any defend a Relevant Tax Claim provided that:
(a “Disputed a) the Tax Claim”) or any matter relating to Covenantor indemnifies and secures the Disputed Buyer and the Company in such manner as the Buyer shall require against all losses, costs, damages and expenses, including interest on overdue Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required which may be incurred by the BuyersBuyer and the Company in taking action; and
(b) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers Buyer shall not be obliged to take appeal or procure that the taking of any action under Paragraph 6.3 in respect of Company appeal against any Tax Claim:
Liability to which the Relevant Tax Claim relates unless the Tax Covenantor has made the request and provided the indemnity and security referred to in paragraph (a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed above by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1earlier of:
(i) fail within fifteen (15) Business Days to serve 15 days from the date on which notice on of the Buyers under Paragraph 6.3Relevant Tax Claim was given; or
(ii) fail within fifteen (15) two clear Business Days before the last date on which an appeal may be made against the Tax Liability to notify which the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; orRelevant Tax Claim relates;
(dc) if, in neither the Buyers’ reasonable opinion, Buyer nor the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would shall be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against under this paragraph which involves contesting any person who is Tax Liability to which the Relevant Tax Claim relates before any court or appellate body (other that the relevant Tax Authority) unless the Tax Covenantor at its own expense and after disclosure of all relevant information and documents obtains and delivers to the time Buyer a written opinion of leading tax counsel to the effect that such an appeal will, on balance, be successful.
6.3 The provisions of paragraph 6.2 above shall not apply where in question either an employee or director of any member the Buyer’s reasonable opinion compliance with those provisions would be detrimental to the business of the Buyers’ Tax Group, or any company that is at the time in question Company taken as a member of the Buyers’ Tax Groupwhole.
6.5. If Paragraph 6.3 does 6.4 The provisions of paragraph 6.2 above shall not apply by virtue of any provision in Paragraph 6.4, and the relevant Buyer or Group the Company (as shall, without reference to the case may be) may satisfy Tax Covenantor, be entitled to admit, compromise, settle, discharge or settle otherwise deal with a Relevant Tax Claim or the Tax Liability to which a Relevant Tax Claim relates on such terms as at it may in its absolute discretion think fit and without prejudice to any right or remedy under this Tax Covenant if it appears to the Buyer that on or before Closing there was any act or failure to act by any of the Buyers’ rights under this ScheduleCompany or the Tax Covenantor which might constitute fraud in relation to any Tax Liability.
6.5 In connection with the conduct of a dispute relating to a Relevant Tax Claim the Tax Covenantor shall not settle or compromise the dispute or agree anything in its conduct, which is likely to affect the amount involved or the future Tax Liability of the Company or the Buyer, without the prior approval of the Buyer.
Appears in 1 contract
Conduct of Claims. 6.1. 6.1 If a Buyer the Purchaser or a any other member of the Purchaser’s Group Company becomes aware of any claim by a Tax third party which is reasonably likely to result in a Claim being made or any other matter or circumstance which is reasonably likely to give rise to a Claim, the Buyer Purchaser shall:
(a) procure that notice thereof is promptly (and in any event within 30 days of becoming aware of it and having had a reasonable opportunity to investigate it) given to the Seller as regards any such claim, matter or circumstance but shall or (subject to the remaining provisions of this paragraph 6) retain conduct of such claim, subject to consultation and the provision of information to the Seller (provided that failure to give such notice in accordance with this paragraph 6.1(a) shall not relieve the Seller of its obligations hereunder except to the extent that such failure shall have adversely affected the Seller);
(b) allow, and shall procure that the relevant Group Company Companies shall within a provide, reasonable time give notice access to the Seller of and its Representatives upon reasonable notice and during normal business hours to investigate the Tax Claim, provided always that the giving matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such notice shall not be a condition precedent to claim, and for such purpose the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax ClaimPurchaser shall, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall, give all such reasonable information (however stored or recorded) and reasonable assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, as the Seller or its Representatives may reasonably request and at the Seller’s cost (subject to the Seller only using the same in connection with the investigation of such claim and otherwise keeping such information confidential in accordance with the terms of Clause 18 of the Agreement);
(c) subject to the Seller agreeing to reimburse the Purchaser to its reasonable satisfaction against its reasonable costs and expenses:
(i) take all such commercially reasonable action and institute any Proceedings, and give any information and assistance, as the Seller may reasonably request by notice in writing to avoidto:
(A) dispute, disputeresist, appeal, compromise, defend, resist, appeal remedy or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to mitigate the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successmatter; or
(bB) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of enforce against a Group Company prior to the Closing; or
person (c) should other than the Seller, following receipt of written notice of ) the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director rights of any member of the Buyers’ Tax GroupPurchaser’s Group in relation to the matter; and
(ii) in connection with Proceedings related to the matter, use advisers nominated by the Seller and, if the Seller requests, allow the Seller the exclusive conduct of the Proceedings; provided, however, that this subclause (ii) shall not be applicable if the matter may materially adversely affect the Purchaser or the Group Companies other than as a result of money damages or other money payments or if the matter relates to a dispute with a customer or supplier of the Purchaser or the Group Companies.
6.2 If a Claim is as a result of, or any company in connection with, a claim by or liability to, a third party, then the Purchaser shall not, and shall procure that is at the time in question a no other member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision Purchaser’s Group shall, admit liability in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any respect of the Buyers’ rights under this Scheduleclaim, and shall procure that the claim shall not be compromised, disposed of or settled without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware 9.1 The Purchaser shall inform the Covenantors in writing of a Tax any claim by any third party (“Third Party Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice ”) which comes to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Purchaser, or any other member of the Purchaser Group, whereby it appears that the Covenantors are or are likely to become liable under any Claim within seven days from the day on receipt which such Third Party Claim comes to the notice of such notification for the purpose Purchaser or other member of this Paragraph 6.2the Purchaser Group.
6.3. 9.2 Subject to the following provisions Purchaser being indemnified and secured to its reasonable satisfaction in accordance with paragraph 10.4 of this Paragraph 6.3, the Buyers Schedule 4:
9.2.1 The Purchaser shall (and where relevant, shall procure that the relevant Group Companies shall) take such action and give such information and assistance as the Seller Covenantors may reasonably request by notice in writing to avoid, dispute, defend, resist, mitigate, compromise or defend any Third Party Claim and to appeal against any judgment given in respect thereof including (without limitation) applying to postpone so far as legally possible the payment of any Taxation; and
9.2.2 On the written request of the Covenantors, the sole conduct of any legal proceedings of whatsoever nature arising out of any Third Party Claim (“Proceedings”) shall be delegated to the Covenantors. For this purpose, the Purchaser shall give or procure to be given to the Covenantors all such assistance as the Covenantors may reasonably require and shall appoint such solicitors and other professional advisers as the Covenantors may nominate to act of behalf of the Purchaser in accordance with the Covenantors’ instructions.
9.3 Where Proceedings are delegated to the Covenantors in accordance with paragraph 10.2.2 of this Schedule 4:
9.3.1 the Covenantors shall keep the Purchaser fully and promptly informed of the Proceedings, shall consult the Purchaser on any matter which is or is likely to be material in relation to any Proceedings and shall take account of all reasonable requirements of the Purchaser in relation to such Proceedings; and
9.3.2 the Covenantors shall not make any settlement or compromise any Tax of the Third Party Claim (a “Disputed Tax Claim”) or which is the subject of Proceedings, nor agree to any matter relating to in the Disputed Tax Claim but only provided that conduct of such Proceedings which may affect the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result amount of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability in connection with such Third Party Claim without the prior approval of the Seller under this SchedulePurchaser, such approval not to be unreasonably withheld or delayed, and provided always that, in the event of the Purchaser refusing approval of such settlement or compromise, the Buyers Covenantors shall not be obliged to take or procure the taking of any action under Paragraph 6.3 have no liability in respect of any Tax Claim:
(a) to Claim arising therefrom in excess of the extent that it would involve a Group Company contesting any Disputed Tax figure at which they could have settled or compromised the relevant Third Party Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers Purchaser shall be liable for any costs incurred since the proposed date of settlement or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupcompromise.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Stock Purchase Agreement (Utek Corp)
Conduct of Claims. 6.1. If a 9.1 Subject to clause 9.5 below, if the Buyer or a any of the Group Company Companies becomes aware of a Tax ClaimAssessment or any other matter which would or is likely to give rise to a Tax Claim (such Tax Assessment or other matter being defined for the purposes of this Clause 9 as a “Tax Matter”), the Buyer shall as soon as reasonably practicable give written notice of the Tax Assessment or shall procure that the relevant Group Company shall within a reasonable time give notice other matter to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2Deed. If the Seller becomes aware of a Tax ClaimThe Buyer shall, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, or shall procure that the relevant Group Company or Companies shall, (at the Seller’s expense) take such action and give such information and assistance in connection with the affairs of the relevant Group Company or Companies as the Seller may reasonably request by notice in writing to avoidresist, appeal, dispute, defend, resist, appeal avoid or compromise any the Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only Assessment provided that the Seller shall first (indemnify the Company or the Buyer to the Buyers’ reasonable satisfactionsatisfaction of the Buyer against all reasonable costs and expenses other than Salary Costs which may be incurred in relation to the same. Such information and assistance shall include, without limitation, providing reasonable access to relevant documentation and records and permitting the copying of such documentation and records.
9.2 For the avoidance of doubt, the actions which the Seller may reasonably request under this clause 9 shall include (without limitation) indemnify the Buyers procuring of any Group Company to apply to postpone (so far as legally possible and without prejudicing the position of the Buyer or any Group Company) the payment of any Taxation and/or allowing the Group Companies (as required Seller to take on or take over at its own expense the conduct of all or any proceedings of whatsoever nature arising in connection with the Tax Matter in question.
9.3 If the Seller elects to have conduct of a claim in accordance with the provisions set out above:
9.3.1 the Buyer shall be kept informed of all matters pertaining thereto and steps proposed to be taken by the BuyersSeller and the Seller shall timeously provide the Buyer copies of all correspondence with the relevant Taxation Authority in connection with the claim in question and notes of all telephone conversations or meetings with the relevant Taxation Authority in relation to that claim;
9.3.2 the Seller shall deliver to the Buyer all documents which are required under this Clause or the relevant Taxation Statute to be authorised or signed by the Company for authorisation and/or signature not less than 15 Business Days prior to the last date on which such returns, computations and correspondence are due to be submitted to the relevant Tax Authority (without any application for postponement) and shall provide the Buyer with an opportunity to comment thereon. The Seller shall not unreasonably refuse to accept any such comments;
9.3.3 where the Company is not required under the relevant Taxation Statute to sign a material document but the Seller proposes to correspond with the Taxation Authority then the Seller shall first deliver to the Buyer a draft of such correspondence and shall provide the Buyer with an opportunity to comment thereon which shall be done timeously. The Seller shall not unreasonably refuse to accept any such comments;
9.3.4 The appointment of accountants, solicitors or other professional advisors in connection with the claim shall be subject to the prior written approval of the Buyer, such approval not to be unreasonably withheld or delayed. Where necessary, the Buyer shall procure that the Company submits as soon as reasonably practicable the appropriate form to the Taxation Authority to appoint the relevant accountants, solicitors or other advisors as agents of the Company in order to enable those accountants, solicitors or other advisers to sign documents on behalf of the Company.
9.4 The Buyer shall procure that the Company shall cause the matters referred to in Clause 9.3.2 to be authorised, signed and returned to the Seller for submission to the appropriate Taxation Authority without undue or unreasonable delay, provided that:
9.4.1 the Seller agrees that there shall be proper disclosure to such Taxation Authority wherever the Buyer reasonably considers that this is appropriate;
9.4.2 nothing shall oblige the Buyer or the Company to sign or procure the signature on any such document which, in its reasonable opinion is in breach of the Taxation Statute, or which the Auditors consider to be false or misleading or not complete and accurate in all material respects or otherwise likely to result in a material additional liability for the Company (but for the avoidance of doubt neither the Buyer nor the Company shall be under any obligation to investigate such matters, shall be entitled to rely upon the Seller, and their signing of the relevant documents shall not be construed as their having so investigated the matters but as having so relied); and
9.4.3 the Seller undertakes not to, and undertakes to procure that the solicitors, accountants or other professional advisors appointed in accordance with clause 9.3.3 do not, do or omit to do anything which could cause the Company to be in breach of any legal obligation or would give a Taxation Authority grounds for initiating a back duty investigation or a discovery notice.
9.5 The Seller shall not make any settlement or compromise of any Tax Assessment or claim unless it has first notified the Buyer and any Group Company of the terms of such proposed settlement or compromise and the Buyer has given its consent in writing to such settlement or compromise (such consent not to be unreasonably withheld or delayed) but if such consent is refused, the Seller’s liability under the Tax Deed and Tax Warranties in relation to that Tax Assessment shall be limited to a maximum of the amount for which the Seller would have been liable if such consent had been forthcoming and the Buyer may settle the Tax Assessment at its complete discretion.
9.6 The Buyer or the Company shall not be required to take any action:
9.6.1 unless the Buyer or the Company concerned is promptly (and in any event within 10 Business Days of written notification of a Tax Matter having been received by the Seller in accordance with clause 9.1) indemnified to its reasonable satisfaction by the Seller against the relevant liability under clause 2 and all reasonable losses, costs, damages and expenses (including penalties and interest on overdue Tax or any additional claims but excluding Salary Costs) that are or may be thereby incurred;
9.6.2 unless, in the context of an appeal against any lossesTax Assessment or determination before any tribunal, damagescourt, costs appellate body or expenses which it may suffer or incur as a result of taking such action judicial authority (including any additional liability to Taxfor the avoidance of doubt the General or Special Commissioners or the Value Added Tax and Duties Tribunal).
6.4. Without prejudice , there has been provided to the liability Buyer by and at the expense of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of leading independent tax counsel Counsel of appropriate at least ten years’ call, after the disclosure of all relevant experience appointed by agreement between the Seller information and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller documents, that an appeal is a reasonable course of action given in all the circumstances including circumstances;
9.6.3 if the likelihood Seller or the Company (prior to Completion) has committed an act or is responsible for an omission which constitutes fraudulent conduct in respect of successa Tax Assessment;
9.6.4 if the Buyer or the Company is not requested by the Seller to take any action within 30 Business Days of receiving notice in accordance with clause 9.1 or, in the case of a Tax Assessment where notice has been given in accordance with clause 9.1 where the last date on which an appeal may be made against the liability to which the Tax Assessment relates, the later of five Business Days prior to the last date on which an appeal may be made against the liability to which the Tax Assessment relates and five Business Days after such notice has been given; or
(b) where 9.6.5 if written notice is served on the Buyer or the Company by the Seller stating that the Tax Claim Assessment should no longer be resisted.
9.7 The Seller shall have the conduct, at its own expense, of all or action derives from or arises out any proceedings of or is whatsoever nature arising in connection with any dishonest or fraudulent act or omission or willful default by or Liability to Taxation which arises as a result of an adjustment to the Profits and losses of the Seller at Company pursuant to Paragraph 1 of Schedule 28AA ICTA 1988, where those Profits and losses are earned, accrued or received in respect of any time period or by periods ending before the Completion Date, or in respect of any part of a period where that part of the period ends before the Completion Date, and at the Seller’s expense, the Buyer shall provide, and shall procure that any Group Company prior shall provide, such information and assistance as the Seller may reasonable require in connection with the preparation for and conduct of those proceedings.
9.8 If the parties cannot agree the contents of any item or any matter referred to in Clause 9.3.2 the Closing; or
matter will be referred to an independent chartered accountant of at least 10 years relevant experience to be agreed between the parties (c) should or failing agreement to be appointed by the Seller, following receipt of written notice President of the Tax Claim from a Buyer Institute of Chartered Accountants) and the contents of such item shall be determined by such chartered accountant acting as an expert and not as an arbitrator, both parties having the right to make representations, and such determination (in accordance with Paragraph 6.1:
(ithe absence of manifest error) fail within fifteen (15) Business Days to serve notice shall be conclusive and binding on the Buyers under Paragraph 6.3; orparties and whose costs may be borne as the independent chartered accountant shall direct.
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further 9.9 If no action is required to be taken by a Buyer or a Group the Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Tax Matter under the terms of Clause 9.6, or the Seller fails to satisfy the terms of Clause 9.3 in any material respect in respect of a Tax Matter, the Buyer and the Company to take any action against any person who is at the time in question either an employee or director of any member may resume conduct of the Buyers’ Tax GroupMatter and, subject to clause 9.9.2 below, shall have absolute discretion in dealing with the Tax Matter or any company that is at satisfying, settling or agreeing the time in question a member of Tax Matter as the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group the Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit fit, without prejudice to any other right or remedy available to the Buyer or the Company. In this regard:
9.9.1 the Seller shall be kept informed of all matters pertaining thereto and steps proposed to be taken by the Buyer or the Company and the Buyer or the Company shall timeously provide to the Seller copies of all correspondence with the relevant Taxation Authority in connection with the claim in question and notes of all telephone conversations or meetings with the relevant Taxation Authority in relation to that Tax Matter; and
9.9.2 the Buyer or the Company shall deliver to the Seller all material documents which are required to be sent to the relevant Taxation Authority and shall provide the Seller with an opportunity to comment thereon. The Buyer or the Company shall not unreasonably refuse to accept any such comments. The Buyer and the Company shall not make any settlement or compromise of any Tax Assessment or claim unless the Seller has first been notified of the Buyers’ rights under this Scheduleterms of such proposed settlement or compromise and the Seller has given its consent in writing thereto (such consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Conduct of Claims. 6.1. 5.1 If a the Buyer or a Target Group Company becomes aware after the Closing Date of any matter which could give rise to a Tax Claim, the Buyer shall or shall procure that the relevant Target Group Company shall as soon as reasonably practicable, and in any event within a reasonable time twenty (20) Business Days, give written notice of the Claim to the Seller of the Tax Claim, Management Warrantors’ Representative provided always that the giving of such notice notification shall not be a condition precedent to the liability of the Seller making a claim under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice Schedule or for breach of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2Warranties.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers 5.2 The Buyer shall (and where relevant, shall procure that the relevant Target Group Companies shall) Company shall take such action as the Seller Management Warrantors’ Representative may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, reduce, compromise or compromise defend any Tax Claim referred to in paragraph 5.1 and any adjudication in respect thereof (a “Disputed Tax Claimdispute”) or any matter relating (but which will not include permitting the Management Warrantors to take control (including in the name of a Target Group Company) of the matter) subject to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimfollowing:
(a) the Buyer and the relevant Target Group Company being indemnified to the extent that it would involve Buyer’s reasonable satisfaction by the Management Warrantors against all costs and expenses thereby reasonably and properly incurred;
(b) neither the Buyer nor a Target Group Company contesting shall be obliged to take any Disputed action nor procure any action is taken which is likely to materially adversely affect a Target Group Company’s or the Buyer's future Tax Claim before position;
(c) neither the Buyer nor a Target Group Company shall be obliged by this paragraph to take or procure that a Target Group Company takes or omits to take any court action that is not permitted under the W&I Policy or other appellate bodywould vitiate the W&I Policy or conflicts with the instructions, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers requests or in default of agreement appointed by the President for the time being rights of the Institute of Chartered Accountants in England and Wales upon insurer under the application of either W&I Policy.
5.3 The Buyer or Target Group Company may without reference to the Management Warrantors admit, settle, discharge, compromise or otherwise deal with any particular Claim to which paragraph 5.1 applies (without prejudice to their rights under this Schedule 4) if:
(a) the Management Warrantors’ Representative serves a written notice on the Buyer to the effect that in relation to any such Claim (or any dispute in relation to such Claims) the Seller an appeal is a reasonable Management Warrantors do not wish to request the Buyer to take any particular course of action given all in relation to the circumstances including the likelihood of successconduct thereof; or
(b) where a period of thirty (20) Business Days has expired following the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or service of a Group Company prior written notice by the Buyer on the Management Warrantors’ Representative pursuant to paragraph 5.1 where either (a) the Management Warrantors’ Representative has not made a request to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
paragraph 5.2 in relation to the relevant Claim; or (ib) fail within fifteen (15) Business Days to serve notice on where the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by Management Warrantors’ Representative has made a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller request pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and paragraph 5.2 in respect of it; orthe relevant Claim but the Management Warrantors have failed to provide a duly executed indemnity.
(f) that requires a Group Company to take any action against any person who is 5.4 Each party shall at the time in question either an employee or director of any member written request of the Buyers’ Tax Groupother supply or procure the supply to, or any company that is the other party at the time relevant Target Group Company’s cost with all information, books, papers and other documents in question a member the possession or under the control of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision that party in Paragraph 6.4, relation to the relevant Buyer Claim and shall give or Group Company (procure the giving as appropriate of such reasonable co-operation as the case party may be) may satisfy reasonably request or settle require for the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to purpose of resisting any of the Buyers’ rights under this ScheduleClaim.
Appears in 1 contract
Samples: Warranty Deed (Broadridge Financial Solutions, Inc.)
Conduct of Claims. 6.1. 5.1 If a the Buyer or a Group Company becomes become aware of any Tax Authority Action or any other circumstance which gives or may give rise to a Tax ClaimSchedule Claim or a Tax Warranty Claim (including, without limitation, the preparation or submission of any notice, return, computation or assessment by or on behalf of a Group Company from which it appears that a Tax Liability is likely to arise) (a “Tax Issue”) the Buyer shall shall, or shall procure that the relevant a Group Company shall within a reasonable time shall, as soon as reasonably practicable, give written notice to (the Seller “Notice of Claim”) of the Tax Claim, provided always that Issue to the giving of Seller’s Representative but such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. 5.2 If the Seller becomes aware of a Tax ClaimSeller’s Representative so requests in writing, the Seller Buyer shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, or shall procure that a Group Company shall supply the Seller’s Representative with such available and relevant Group Companies shall) details, documentation, correspondence and information and shall (subject to Paragraph 5.5 of this Schedule 8) take such action as the Seller Seller’s Representative may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, compromise, defend or appeal or compromise against the Tax Issue and any adjudication in respect of the Tax Claim Issue provided that:
(a) the Seller’s Representative shall not be entitled to require a “Disputed Tax Claim”) Group Company to delegate the conduct of such action (or any matter relating part of it) to himself, the Disputed Tax Claim but only provided that Seller or any agent or professional adviser of the Seller; and
(b) the Seller shall first indemnify and (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as extent reasonably required by the BuyersBuyer taking into account the relative size of any potential liabilities and resources of and available to the Seller) secure any Group Company and the Buyer to the reasonable satisfaction of the Buyer against any lossesloss, damages, costs or reasonable costs, reasonable expenses which it may suffer or incur as a result of taking such action and liabilities (including any additional liability Tax) which may be suffered or incurred as a consequence of any action taken in accordance with this Paragraph 5 of this Schedule 8 and shall put in place arrangements with which the Buyer, acting reasonably, is satisfied to Tax)ensure that the Seller pay all sums that may become due under this Schedule 8 in respect of the Tax Schedule Claim.
6.4. Without prejudice 5.3 If the Seller’s Representative does not request the Buyer or a Group Company to take action pursuant to this Paragraph 5 of this Schedule 8 within twenty-one (21) days of the Notice of Claim being given, or the Seller fails to indemnify the Buyer or a Group Company concerned, or entered into arrangements, as provided for in Paragraph 5.2(b) of this Schedule 8 above in either case to the liability satisfaction of the Seller under this ScheduleBuyer and the relevant Group Company, the Buyers Buyer or a Group Company shall be free to pay or settle the Tax Issue on such terms as they may in their absolute discretion think fit without further reference to the Seller or the Seller’s Representative.
5.4 The Buyer shall keep the Seller’s Representative reasonably informed of the progress in settling the relevant Tax Issue and shall, as soon as reasonably practicable, forward or procure to be forwarded to the Seller’s Representative copies of (or the relevant parts of) all material correspondence pertaining to it.
5.5 The Buyer shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimthe following action:
(a) agreeing to the extent that it would involve settlement or compromise of any Tax Issue or any proposal for the same which is reasonably likely to materially adversely affect the future liability to Tax of a Group Company Company, the Buyer or any member of the Buyer’s Group;
(b) contesting any Disputed Tax Claim Issue before any tribunal, court or other appellate bodybody unless, unless in at the sole expense of the Seller, the Seller’s Representative obtains the written opinion of tax Tax counsel of appropriate relevant experience appointed by (and agreed with the Buyer, such agreement between the Seller not to be unreasonably delayed or withheld) after disclosure of all relevant information and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England documents and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given having regard to all the circumstances including circumstances, that on the likelihood balance of success; or
(b) where probabilities the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior more likely than not to the Closing; orsucceed;
(c) should complying with any unreasonable instruction of the Seller’s Representative or taking any action or procuring the taking of any action which it reasonably considers (i) may affect the future liability to Tax of a Group Company, following receipt the Buyer or any member of written notice the Buyer’s Group or (ii) may be prejudicial to the Tax, commercial or financial interests or the business of a Group Company, the Buyer or any member of the Buyer’s Group, or any person connected with them, or the normal administration and conduct of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing affairs of any further action to be taken by a Group Company, the Buyer or any member of the Buyer’s Group, or any person connected with them or any dealing they may have with a Tax Authority or (iii) is unreasonable or contrary to the legal obligations of a Group Company under Paragraph 6.3 where Company, the Buyer or any member of the Buyer’s Group, or any person connected with any of them or (iv) is not likely to result in a Buyer at any time seeks instructions from material reduction in the Seller’s liability pursuant to this Schedule 8; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take taking any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Buyer’s Group, or any company that is at the time in question a member of the Buyers’ Tax Buyer’s Group.
6.5. 5.6 If Paragraph 6.3 does not apply it is alleged by virtue of any provision Tax Authority in Paragraph 6.4writing, or there is any pending investigation or any Court judgment, that the relevant Buyer Seller (at any time) or a Group Company (as prior to the case may beCompletion Date) may satisfy has committed any act or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice omission constituting fraud or gross negligence relating to any issue (including Tax), Paragraphs 5.2 to 5.5 of this Schedule 8 shall not apply and the Buyers’ Seller’s Representative shall cease to have any rights under this Schedulethose Paragraphs.
Appears in 1 contract
Samples: Share Purchase Agreement (Inspired Entertainment, Inc.)
Conduct of Claims. 6.1. 7.1 If a the Buyer or a any Group Company (or any of their officers, employees, servants or agents) becomes aware of a Tax ClaimClaim which will or may give rise to a claim against the Covenantor under this deed or any of the Taxation Warranties, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable as soon as reasonably practicable (taking into account any statutory or other time limit applicable for responding to or appealing against the Claim) give written notice of the Claim to the Seller of the Tax Claim, provided always Covenantor but so that the giving of such notice shall not be a condition precedent to the liability of the Seller Covenantor hereunder. Such written notice shall include an estimate (based on the information then available to the Buyer or any Group Company) of the Covenantor's liability under this Schedule.
6.2. If the Seller becomes aware deed in respect of a Tax such Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable basis of calculation of that estimate and the Buyers shall be deemed to have given the Seller notice such details of the Tax Claim on receipt of such notification for as are then available to the purpose of this Paragraph 6.2Buyer or the relevant Group Company.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers 7.2 The Buyer shall (and where relevant, shall procure that the relevant Group Companies shall) Company shall take such action (and provide such relevant information assistance and documentation to the Covenantor in relation thereto) as the Seller Covenantor may reasonably request by notice (having regard to the balance for the time being standing to the credit of the Escrow Account referred to in writing Schedule 6 to the Agreement) to avoid, dispute, defend, resist, appeal appeal, reduce, compromise or compromise defend any Tax Claim referred to in clause 7.1 and any adjudication in respect thereof (a “Disputed Tax Claim”"DISPUTE") or any matter relating subject to the Disputed Tax Claim but only provided that Buyer and the Seller shall first (Company being indemnified to the Buyers’ Buyer's reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required satisfaction by the Buyers) Covenantor against any all losses, damages, interest, penalties and surcharges and reasonable costs or and expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)thereby incurred.
6.4. Without prejudice 7.3 Subject to the liability provisions of this clause 7.3 and 7.4, any dispute relating to a Claim referred to in clause 7.1 shall if the Seller under this Schedule, Covenantor requests be conducted by the Buyers Covenantor but:
7.3.1 the Covenantor shall not be obliged keep the Buyer informed of all relevant matters relating to take the dispute and shall promptly forward or procure to be forwarded to the taking Buyer copies of all relevant correspondence with any action under Paragraph 6.3 Tax Authority and other relevant information and documentation other than, in any event, any advice to the Covenantor as to its liability in respect of any Tax Claim:the relevant Claim or dispute under this deed or the Agreement;
(a) 7.3.2 all material communications written or otherwise relating to the extent that it would involve dispute which are to be transmitted to a Group Company contesting any Disputed Tax Claim before any court Authority shall first be submitted to the Buyer for approval and shall only be finally transmitted if such approval is given such approval not to be unreasonably withheld or delayed;
7.3.3 the appointment of solicitors or other appellate body, unless professional advisers (other than the Vendors' own solicitors or the Vendors' own accountants) shall be subject to the prior written approval of the Buyer such approval not to be unreasonably withheld or delayed;
7.3.4 the Covenantor shall make no settlement or compromise of the dispute nor agree any matter in the written opinion conduct of tax counsel such dispute which is likely to increase the amount thereof or adversely affect the future liability of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course Company to Taxation without the prior approval of action given all the circumstances including Buyer such approval not to be unreasonably withheld or delayed.
7.4 Subject to the likelihood of success; or
(b) where Buyer having complied with its obligations under clause 7.1 and 7.2 the Tax Claim Buyer or action derives from the Company may without reference to the Covenantor admit, settle, discharge, compromise or arises out of or is in connection otherwise deal with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior particular Claim to the Closing; or
which clause 7.1 applies (cwithout prejudice to their rights under this deed) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1if:
(i) fail within fifteen (15) Business Days to serve 7.4.1 the Covenantor serves a written notice on the Buyers under Paragraph 6.3; orBuyer to the effect that in relation to any such Claim (or any dispute in relation to such Claim) it does not wish to take up or continue the conduct thereof;
(ii) fail within fifteen (15) 7.4.2 a period of 45 Business Days to notify has expired following the Buyers in writing service of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested written notice by the Seller Buyer on the Covenantor pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupthis clause 7.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Pharmacopeia Inc)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware 14.1 The Lead Authority shall have conduct of a Tax Claimclaims against the Contractor for breach of Contractual Obligations, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with right to settle any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability litigation on such terms as it may reasonably considers satisfactory. The Lead Authority shall in accordance with clause 9 of the Contractor Agreement use reasonable endeavours to procure that any claim that any Participating Authority (Other Beneficiary) has under the Contractor Agreement against the Contractor is assigned to the Lead Authority and managed by the Lead Authority.
14.2 To the extent the Lead Authority is unable to procure assignment of a claim in accordance with clause 9 of the Contractor Agreement, the other Participating Authority (as 'Other Beneficiary' under the Contractor Agreement) shall be entitled to bring such claim directly against the Contractor, as if the Participating Authority was the Lead Authority. The Participating Authority shall bear the full cost of such claim/claims and be obliged to take account (giving reasonable and fair consideration) of the content of any legal opinion obtained by the Lead Authority as to the merits and/or quantum of such claim.
14.3 In accordance with the Contractor Agreement, a Participating Authority shall have no authority to agree changes to or to waive any breach of the Contractor Agreement
14.4 Subject to clause 14.2, no Participating Authority shall enter into any communications with the Contractor in respect of any breach of Contractual Obligations or commence or negotiate or settle any dispute, claim, proceedings or other litigation in respect of breach of Contractual Obligations.
14.5 Unless the Lead Authority notifies the Finance Directors that the relevant Participating Authorities must enforce the Contractual Obligations in their own right and subject also to the provisions of clause 14.6, the Lead Authority shall use its absolute discretion think fit without prejudice reasonable endeavours to enforce Contractual Obligations and to pursue any resulting claim against the Contractor on behalf of the Participating Authorities (or any of them) if and to the extent the Lead Authority is instructed by the Finance Directors to do so.
14.6 The Lead Authority shall have no obligation to take any action described in clause 14.5 in relation to any particular matter unless and until the Lead Authority and all the Participating Authorities have agreed the terms of reference of such action, the Buyers’ rights under basis on which the costs of such action are to be borne by all the Participating Authorities and the basis on which any damages, costs and expenses actually recovered from the Contractor in respect of such action are to be divided between the Lead Authority and all Participating Authorities.
14.7 The Participating Authorities shall at their own expense provide such assistance and co-operation to the Lead Authority in connection with such action as described in clause 14.5 as the Lead Authority may reasonably require.
14.8 Nothing in this Scheduleclause restricts or prevents any Participating Authority from bringing tortious claims directly against the Contractor.
Appears in 1 contract
Samples: Inter Authority Agreement
Conduct of Claims. 6.1. 7.1 If a the Target or the Buyer or a Group Company becomes aware of a Tax ClaimClaim for Tax, the Buyer shall or shall procure that the relevant Group Company Target shall within a reasonable time give written notice of that Claim for Tax to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Warrantors as soon as reasonably practicable and in any event within 15 Business Days of the Buyers Buyer or the Target becoming aware of the Claim for Tax (provided that failure to deliver that notice within that time frame shall be deemed not restrict the ability of the Buyer to have given make a claim against the Seller notice Warrantors under the Tax Covenant or for breach of any of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2Warranties).
6.3. 7.2 Subject to this paragraph 7.2 and paragraphs 7.3 to 7.7 the following provisions of this Paragraph 6.3, the Buyers Buyer shall (and where relevant, or shall procure that the relevant Group Companies shall) Target shall take such any action to dispute, resist, appeal, settle, compromise or contest any Claim for Tax as the Seller Warrantors may reasonably request by notice in writing provided that:
(a) neither the Buyer nor the Target shall be required to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) delegate the conduct of that action to the Warrantors or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs professional agent or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability adviser of the Seller under this Schedule, Warrantors;
(b) the Buyers Buyer shall not be obliged to take or procure that the taking of Target takes that action unless the Warrantors have first indemnified and secured the Buyer and the Target to their reasonable satisfaction against any liabilities (including additional Tax) and any reasonable costs or expenses which may be properly incurred thereby; and
(c) neither the Buyer nor the Target shall be obliged by this paragraph 7.2 to take any action nor procure any action is taken which could reasonably be said to be frivolous or vexatious or which could materially and adversely affect the Target or the Buyer’s future Tax position.
7.3 The Target shall not be obliged to comply with any request of the Warrantors which involves contesting any Claim for Tax before any court, tribunal or other appellate body unless the Warrantors obtain (at their cost and expense) the written opinion of counsel of at least seven years’ call that it is reasonable in all of the circumstances to contest such Claim for Tax.
7.4 If within twenty-one days of service of the notice under Paragraph 6.3 paragraph 7.1 the Warrantors fail to notify the Buyer in respect writing of their intention to resist the Claim for Tax or fail within that period to give the indemnity and security referred to in paragraph 7.2(b) the Buyer shall be free to procure that the Target takes the action as it may in its absolute discretion, acting reasonably and in good faith, think fit and without prejudice to its rights and remedies under this Schedule
7.5 Subject to paragraphs 7.2 to 7.4 in relation to any Claim for Tax where any meeting is to take place with a representative or representatives of any Tax ClaimAuthority, the party conducting the dispute shall provide the other party with reasonable advance notice of the meeting together with an outline of the issues that it is anticipated will be addressed, and the party not conducting the dispute shall be entitled to nominate a person or persons to attend that meeting.
7.6 Subject to paragraphs 7.2 to 7.4, in relation to any Claim for Tax the Buyer will not (and will procure that the Target will not) without the prior written consent of the Warrantors, such consent not to be unreasonably withheld or delayed:
(a) transmit any material communication (whether written or otherwise) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; orAuthority;
(b) where settle or compromise the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closingfor Tax; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of agree any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 matter which is likely to affect materially and adversely the liability amount of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand Claim for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and (or any future Tax Liability or other liability in respect of it; or
(f) that requires a Group Company to take any action against any person who is at which the time in question either an employee Warrantors may be liable under this Schedule 10 or director of any member for breach of the Buyers’ Tax Group, Warranties).
7.7 Paragraph 7.2 shall not apply if a Tax Authority alleges in writing that either the Warrantors or any company that is at the time Target (before Completion) or anyone connected with them (and in question a member case of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, Target connected with the relevant Target before Completion) has committed acts or omissions which constitute or are alleged to constitute fraud or wilful default and the Buyer or Group Company (as shall be free to procure that the case may be) may satisfy or settle Target takes the Tax Liability on such terms as action that it may in its absolute discretion discretion, acting reasonably and in good faith, think fit without prejudice to any of the Buyers’ rights under this Schedulefit.
Appears in 1 contract
Conduct of Claims. 6.1. 2.1 If the Target receives a Buyer or a Group Company becomes aware of a Tax ClaimClaim for Tax, the Buyer shall or shall procure that the relevant Group Company Target shall within a reasonable time give written notice of such Claim for Tax to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Warrantors as soon as reasonably practicable and and, in any event, in the Buyers case where the Claim for Tax consists of an assessment or demand for which the period for response or appeal is time limited, within ten Business Days of receipt of such assessment or demand (provided that failure to deliver such notice within such time frame shall be deemed not restrict the ability of the Buyer to have given make a claim against the Seller notice Warrantors pursuant to this Schedule or for breach of the Tax Claim on receipt of such notification for the purpose Warranties).
2.2 Subject to this paragraph 2.2 and paragraph 3.4 to 3.6 of this Paragraph 6.2.
6.3. Subject to Part the following provisions of this Paragraph 6.3, the Buyers Buyer shall (and where relevant, or shall procure that the relevant Group Companies shall) Target shall take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, compromise or compromise contest any Claim for Tax Claim as the Warrantors may reasonably request in writing provided that:
(a “Disputed Tax Claim”a) neither the Buyer nor the Target shall be required to delegate the conduct of such action to the Warrantors or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs professional agent or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability adviser of the Seller under this Schedule, Warrantors;
(b) the Buyers Buyer shall not be obliged to procure any such action unless the Warrantors have indemnified the Buyer and the Target to their reasonable satisfaction against any liabilities, costs or expenses (including additional Tax) which may be properly incurred;
(c) neither the Buyer nor the Target shall be obliged to take or procure the taking of any action under Paragraph 6.3 requested by the Warrantors which could reasonably be said to be frivolous or vexatious, or which could adversely affect the Target’s or the Buyer’s future Tax position and the Buyer shall not be obliged to procure that such action is taken.
2.3 In relation to any action referred to in respect paragraph 3.2 of any Tax Claimthis Part the Buyer shall:
(a) keep the Warrantors fully informed of all matters relating to the extent that it would involve action and deliver to the Warrantors copies of all correspondence relating to the action;
(b) obtain the Warrantors’ prior written approval (not to be unreasonably withheld or delayed) to:
(i) the appointment of solicitors or other professional advisers; and
(ii) the content and sending of each material communication relating to the action to a Group Company Tax Authority;
(c) obtain the Warrantors’ prior written approval (not to be unreasonably withheld or delayed) to:
(i) the settlement or compromise of the Claim for Tax which is the subject of the action; and
(ii) the agreement of any matter in the conduct of the action which is likely to affect the amount of the Claim for Tax.
2.4 The Target shall not be obliged to comply with any request of the Warrantors which involves contesting any Disputed Claim for Tax Claim before any court or other appellate body, body unless in the Warrantors obtains the written opinion of tax counsel of appropriate relevant experience appointed by agreement between at least ten years call that such contest will, on the Seller balance of probabilities, be successful.
2.5 The Buyer and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to Target shall be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company free to take any such action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it they may in its their absolute discretion think fit and without prejudice to any their rights and remedies under this Schedule if within Twenty-one days of service of the Buyers’ rights notice under paragraph 2.1 of this SchedulePart the Warrantors fail to notify the Buyer of their intention to resist such Claim for Tax or fails within that period to give the indemnity referred to in paragraph 2.2(b) of this Part.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If a Buyer or a Group Company the Purchaser becomes aware of a any Demand the Purchaser shall give notice to the Seller, with reasonably sufficient details of the Demand and the potential Tax Claimliability, as soon as reasonably practicable.
4.2 In relation to any Demand the Buyer shall or Purchaser shall, and shall procure that the relevant Group Target Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) take reasonable endeavours to keep the Seller fully informed of material developments relating to the extent that it would involve Demand;
(b) not transmit any material communication to any Tax authority in relation to the Demand without first giving the Seller a Group Company contesting reasonable opportunity to comment and without taking account of the Seller's reasonable comments; and
(c) not agree the amount of the relevant Tax liability without the prior approval of the Seller (not to be unreasonably withheld).
4.3 If any Disputed Tax Claim before dispute arises between the Purchaser and the Seller as to whether to agree the amount of any court or other appellate bodyDemand, unless in such dispute shall be referred for determination to a Barrister, of at least 10 years call at the written opinion of tax counsel of appropriate English Bar with relevant experience experience, appointed by agreement between the Seller Purchaser and the Buyers Seller or in default of agreement appointed (if they do not agree) upon the application by either party to the President for the time being of the Institute Law Society, whose determination shall be final. The Barrister so appointed shall be asked to advise whether, in his opinion, (acting as an expert and not as an arbitrator), an appeal against the Demand would, on the balance of Chartered Accountants probabilities, be likely to succeed and shall be instructed, if the dispute relates to a Demand issued by a Tax authority outside the United Kingdom, to obtain such advice from professional advisers of the relevant jurisdiction as he thinks necessary in England order to arrive at his opinion, and Wales upon also to determine how the application costs of either obtaining his opinion should be allocated between the Buyer parties hereto. If, but only if, such opinion is in the affirmative shall an appeal be made and that Demand not then settled. Any further dispute arising between the parties as to whether any further appeal should be pursued following determination of an earlier appeal (whether or not in favour of the Company) shall be resolved in a similar manner. The Purchaser shall not be obliged to make any such appeal unless the Seller an appeal is a reasonable course shall indemnify and at the request of action given the Purchaser secure the Purchaser and the Company to the Purchaser's satisfaction against the relevant percentage of all the circumstances including the likelihood of success; or
(b) losses, costs, interest, damages and expenses and any further liability to Tax which may be incurred thereby and provided that where the Tax Claim or action derives from or arises out of or liability which is in connection with any dishonest or fraudulent act or omission or willful default by or the subject of the Demand has to be paid before an appeal can be made the Purchaser shall not be obliged to procure the Company to take any such action until the Seller at any time or by or of a Group Company prior shall have paid to the Closing; or
(c) should Purchaser, or at its direction, the SellerCompany, following receipt for the purpose of written notice of discharging the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) ifliability, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect the relevant percentage of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director said liability. The Purchaser shall have conduct of any member such appeal subject to the Seller and Purchaser having the same rights and obligations in relation to the conduct of the Buyers’ Tax Group, or any company that is at the time appeal as in question relation to a member of the Buyers’ Tax GroupDemand under paragraph 4.2.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 5.1 If a Buyer or a Group Company the Purchaser becomes aware of any Assessment which does or may give rise to a Tax Claim, Claim the Buyer Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time will:-
5.1.1 give notice in writing of such Assessment including an estimate of the amount of the liability to Tax to which the Assessment relates as soon as reasonably practicable and, in any event within 14 Business Days after the receipt of such Assessment, to the Seller of the Tax Claim, Covenantors provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller Covenantors under this Scheduledeed;
5.1.2 not settle or take any action in relation to the Assessment without first giving the Covenantors the opportunity to dispute, avoid, resist, appeal, compromise or contest the Assessment in accordance with paragraph 5.2 below; and
5.1.3 at the Covenantors request and expense submit a protective Notice of Appeal against the Assessment to the relevant Tax Authority.
6.2. 5.2 If the Seller becomes aware of a Tax ClaimCovenantors shall indemnify the relevant Group Company and the Purchaser to their reasonable satisfaction against any losses, fines, penalties, interest, charges, reasonable costs and expenses, the Seller Purchaser shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies Company shall) , subject to clause 5.3, take such lawful and reasonable action as the Seller may Covenantors shall reasonably request by notice in writing require to avoid, dispute, defend, resist, appeal appeal, compromise or compromise contest such Assessment (the "Covenantor's Action"), including (subject to clauses 5.3 to 5.8):-
5.2.1 applying to postpone (so far as legally possible) the payment of any Tax; and
5.2.2 except in the case of an Assessment where any Tax Claim (a “Disputed Tax Claim”) Authority alleges dishonest or fraudulent conduct on the part of the Covenantors or any matter Group Company taking place on or before Completion allowing the Covenantors to undertake at the Covenantors' own cost and expense, the conduct of any dispute, appeal, negotiation or other proceedings relating directly to the Assessment, Provided that:
5.2.2.1 the Covenantors shall keep the Purchaser and/or the relevant Company fully informed and shall consult with the same in respect thereof; and
5.2.2.2 no material communication, written or otherwise pertaining to any dispute, appeal, negotiation or other proceedings relating to the Disputed Assessment shall be sent to a relevant Tax Claim but only provided that the Seller shall Authority without first (having been submitted to the Buyers’ reasonable satisfaction) indemnify Purchaser for its written approval such approval not to be unreasonably withheld or delayed.
5.3 Neither the Buyers and/or the Purchaser nor any Group Companies (as required by the Buyers) Company shall be obliged to appeal against any lossesAssessment if, damageshaving given the Covenantor notice of the receipt of that Assessment, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability has not within 10 Business Days received instructions in writing from the Covenantors in accordance with clause 5.2 to Tax)make that appeal.
6.4. Without prejudice to 5.4 Neither the liability of the Seller under this Schedule, the Buyers Purchaser nor any Group Company shall not be obliged to take or procure the taking of any action or further action under Paragraph 6.3 this clause in respect of any Tax Claim:
(a) Assessment if it reasonably appears to the extent Purchaser that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer Covenantors or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a relevant Group Company prior to its being in the Closing; or
(c) should the Seller, following receipt of written notice ownership of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer Purchaser, have committed acts or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer omissions which may constitute fraudulent or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupnegligent conduct.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Tax Deed (Cyberoptics Corp)
Conduct of Claims. 6.1. 5.1 If a Buyer the Purchaser or a any Group Company becomes aware (after Completion) of any Claim for Tax which gives or is likely to give rise to a Tax Claim, the Buyer Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice of the Claim for Tax to the Seller of the Tax Claim, provided always that the giving of Vendors' Representative but such notice shall not be a condition precedent to the liability of the Seller Vendors under this Scheduleschedule 5.
6.2. 5.2 If the Seller becomes aware of a Tax ClaimVendors' Representative so requests in writing, the Seller Purchaser shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, or shall procure that the relevant Group Companies shallCompany shall supply the Vendors' Representative with such available and relevant details, documentation, correspondence and information relating to the relevant Claim for Tax and shall (subject to paragraph 5.3) take such action as the Seller Vendors' Representative may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, compromise, defend or appeal or compromise against the Claim for Tax and any adjudication in respect of the Claim for Tax Claim (a “Disputed Tax Claim”) or provided that:
5.2.1 the Vendors' Representative shall not be entitled to require any matter relating Group Company to delegate the conduct of such action to any person; and
5.2.2 the Vendors shall first indemnify each relevant Group Company and the Purchaser to the Disputed Tax Claim but only provided that reasonable satisfaction of the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) Purchaser against any lossescosts, damages, costs or expenses which it may suffer or incur as a result of taking such action and liabilities (including any additional liability to Tax)) which may be incurred as a consequence of any action taken in accordance with this paragraph 5.
6.4. Without prejudice 5.3 If the Vendors' Representative does not request the Purchaser or any Group Company to take action pursuant to paragraph 5.2, or the Vendors fail to indemnify the Purchaser or the relevant Group Company concerned as provided in that paragraph, within 21 days of the said notice to the liability of the Seller under this ScheduleVendors' Representative, the Buyers Purchaser or any Group Company shall be free to pay or settle the Claim for Tax on such terms as they may in their absolute discretion think fit.
5.4 The Purchaser shall not be obliged to take or procure the taking of any the following action under Paragraph 6.3 in respect of any Tax Claimpursuant to paragraph 5.2:
(a) to the extent that it would involve a Group Company 5.4.1 contesting any Disputed Claim for Tax Claim before any court court, tribunal or other appellate bodybody (excluding the First-tier Tribunal) unless, unless in at the sole expense of the Vendors, the Vendors obtain the written opinion of tax Tax counsel of appropriate at least ten years' call after disclosure of all relevant experience appointed by agreement between the Seller information and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England documents and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given having regard to all the circumstances including that it is more likely than not that the likelihood action will succeed;
5.4.2 any action whatsoever requested by any agent or representative of success; orany Vendor including, without limitation, any receiver, administrator or trustee in bankruptcy.
5.5 If it is alleged by any Tax Authority in writing that any Vendor (bat any time) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent Group Company (prior to Completion) has committed any act or omission constituting fraudulent or willful default by or of the Seller at any time or by or of a Group Company prior negligent conduct relating to the Closing; or
(c) should the SellerTax, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does paragraph 5.2 shall not apply by virtue of and the Vendors' Representative shall cease to have any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under that paragraph. *** Confidential treatment has been requested for certain portions of this ScheduleExhibit. Confidential portions of this Exhibit are designated by [***]. A complete version of this Exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Share Purchase Agreement (Velti PLC)
Conduct of Claims. 6.17.1 The Warrantors hereby appoint Xxxxx Xxxxxx (the “Warrantors’ Representative”) as their representatives for the purposes of this paragraph and any action taken or authorised by and any notice or document given to the Warrantors’ Representative shall be deemed to be taken or authorised by or given to each of the Warrantors and shall be binding on each of them. Back to Contents
7.2 If a Buyer the Purchaser or a Group the Company becomes or any of the Subsidiaries become aware of a matter which might give rise to a Claim to which the Warrantors may be liable (other than a claim under the Tax-Related Warranties to which Clause 8 of the Tax Claim, Deed shall apply:
7.2.1 the Buyer Purchaser shall (or shall procure that the relevant Group Company shall within a reasonable time or any Subsidiary concerned shall) as soon as reasonably practicable give written notice to the Seller Warrantors’ Representative of the Tax Claim, provided always that matter and shall consult with the giving of Warrantors’ Representative with respect to such matter but such notice shall not be a condition precedent to the liability of the Seller under this Schedule.Warrantors;
6.2. If 7.2.2 the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers Purchaser shall (and where relevant, shall procure that the Company or any Subsidiary concerned shall) provide to the Warrantors’ Representative (and his advisers) reasonable access to premises and personnel and to relevant assets, documents and records within the Purchaser’s Group Companies for the purposes of investigating the matter and enabling the Warrantors’ Representative to take the action referred to in paragraph 7.2.4;
7.2.3 the Warrantors’ Representative (at the Warrantors’ cost) may take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 7.2.2;
7.2.4 subject to the provisions of paragraph 7.3, the Purchaser shall (and shall procure that the Company or any Subsidiary concerned shall) take such action and give such information and assistance in connection with the affairs of the Purchaser or the Company or any relevant Subsidiary as the Seller Warrantors’ Representative may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, mitigate, compromise, defend or appeal or compromise against any Tax Claim and any adjudication with respect thereto which shall include (a “Disputed Tax Claim”without limitation) the Company or any matter relating relevant Subsidiary applying to postpone (so far as legally possible) the payment of any taxation;
7.2.5 the Warrantors shall indemnify and secure the Purchaser and the Company and any relevant Subsidiary to their reasonable satisfaction against all losses, damages and expenses including interest on overdue tax and reimburse to the Disputed Tax Claim but only provided that Purchaser and the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required Company and any relevant Subsidiary all out-of-pocket expenses reasonably incurred by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax)them in complying with their obligations under this paragraph 7.
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers 7.3 The Purchaser shall not be obliged to take or procure the taking of any action under Paragraph 6.3 of the following actions pursuant to its obligations contained in respect of any Tax Claimparagraphs 6.1, 6.2 and 7.2.4:
(a) to the extent that it would involve a Group Company 7.3.1 contesting any Disputed Tax Claim before any court or other appellate bodybody unless at the sole expense of the Warrantors, unless in the Warrantors’ Representative obtains the written opinion of tax counsel Legal Counsel after disclosure of appropriate all relevant experience appointed by agreement between the Seller information and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England documents and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given having regard to all the circumstances including that it is reasonable to resist the likelihood of success; orClaim and contest it before the appellate body in question. Back to Contents
(b) where the Tax Claim or action derives from or arises out of or is in connection 7.3.2 complying with any dishonest or fraudulent act or omission or willful default by or unreasonable instruction of the Seller at Warrantors’ Representative or to taking any time action or by procuring the taking of any action which it reasonably considers will be onerous or of a Group Company prior prejudical to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax Purchaser or the business Company or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Purchaser’s Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.;
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a Group Company 24.1 Each Party will inform the other as soon as reasonably practicable if it becomes aware of any claim or potential claim which might give rise to a Tax Claimclaim against Indemnified Persons in relation to any obligations under this Agreement. The Authority will not, without the Buyer prior written consent of the Provider, settle any litigation in respect of which indemnification may be sought, regardless of whether or not any Indemnified Person is an actual or potential party thereto, unless such settlement includes an express, complete and unconditional release of each Indemnified Person with respect to all claims asserted in such litigation; such release to be set forth in an instrument signed by all parties to such settlement.
24.2 Where an Indemnified Person intends to enter into any settlement, such Indemnifying Person shall notify the Authority in writing and, where practicable, shall not effect any settlement of any pending or threatened action without consulting with the Authority beforehand. The outcome of such consultation shall procure that not affect the right of the relevant Group Company shall within a reasonable time give notice Indemnified Person to the Seller of the Tax Claimenter into any settlement in its sole discretion, provided always that the giving terms of such notice shall not be a condition precedent to settlement are reasonable for both Parties taking into account the liability relevant facts and circumstances and that the Indemnified Person acts reasonably and in good faith and takes into consideration the interests of the Seller under this Schedule.both Parties
6.2. If the Seller becomes aware of a Tax Claim24.3 In addition, the Seller shall notify the Buyers in writing as soon as reasonably practicable Provider shall, and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the each other relevant Group Companies Indemnified Person shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to consult fairly with the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being Authority regarding its conduct of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; orunderlying claim;
(b) before making any decision with respect to the settlement, consider and take into account, where reasonably practicable in the Tax Claim circumstances and where not adversely prejudicial to the good standing or action derives from or arises out reputation of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at Parties, any time or by or of a Group Company prior business and reputational factor which may be pertinent to the Closing; orconduct of the underlying claim or its settlement;
(c) should subject to not waiving privilege, shall supply the Seller, following receipt Authority with copies of written notice of information and documents relating to the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3underlying claim that it requires; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; orand
(d) if, in deal with the Buyers’ underlying claim having given consideration to the reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially representations and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member views of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupAuthority and its insurers.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Framework Agreement
Conduct of Claims. 6.1. 7.1 If a the Target or the Buyer or a Group Company becomes aware of a Tax ClaimClaim for Tax, the Buyer shall or shall procure that the relevant Group Company Target shall within a reasonable time give written notice of that Claim for Tax to the Seller as soon as reasonably practicable (provided that failure to deliver that notice within that time frame shall not restrict the ability of the Buyer to make a claim against the Seller under the Tax Covenant or for breach of any of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this ScheduleWarranties).
6.2. 7.2 If the Seller becomes aware of a Tax ClaimClaim for Tax, the Seller shall notify the Buyers Buyer in writing as soon as reasonably practicable and practicable, and, on receipt of the Buyers notice, the Buyer shall be deemed to have given the Seller notice of the Claim for Tax Claim on receipt in accordance with the provisions of such notification for the purpose of this Paragraph 6.2paragraph 7.1.
6.3. 7.3 Subject to this paragraph 7.3 and paragraphs 7.4 to 7.6 the following provisions of this Paragraph 6.3, the Buyers Buyer shall (and where relevant, or shall procure that the relevant Group Companies shall) Target shall take such any reasonable action to dispute, resist, appeal, compromise or contest any Claim for Tax as the Seller may reasonably request by notice in writing provided that:
(a) neither the Buyer nor the Target shall be required to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) delegate the conduct of that action to the Seller or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs professional agent or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability adviser of the Seller under this Schedule, Seller;
(b) the Buyers Buyer shall not be obliged to take or procure that the taking of Target takes that action unless the Seller has first indemnified the Buyer and the Target to their reasonable satisfaction against any action under Paragraph 6.3 in respect of any Tax Claim:costs, liabilities (including additional Tax) and expenses which may be reasonably and properly incurred;
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(bc) where the Tax which is the subject of the Claim for Tax is required to be paid or lodged with a Taxation Authority before any appeal can be made or action derives from or arises out of or is in connection with taken ("Disputed Tax"), the Buyer shall not be obliged to procure that the Target takes any dishonest or fraudulent act or omission or willful default by or of action until the Seller at any time or by or has paid the amount of a Group Company prior such Tax to the Closing; orBuyer, provided always that the Buyer hereby undertakes to, or undertakes to procure that the Target will, repay such amount to the Seller as soon as reasonably practicable in the event that the Disputed Tax is subsequently released, refunded or repaid by the relevant Tax Authority in whole or in part;
(cd) should neither the Seller, following receipt Buyer nor the Target shall be obliged by this paragraph 7.3 to take any action nor procure any action is taken which could reasonably be said to give rise to Tax in respect of written notice which the Seller will not be liable under the provisions of this Schedule; and
(e) neither the Tax Claim from a Buyer in accordance with Paragraph 6.1nor the Target shall be obliged by this paragraph 7.3 to take or procure that the Target takes or omits to take any action that:
(i) fail within fifteen (15) Business Days to serve notice on is not permitted under the Buyers under Paragraph 6.3W&I Policy or would vitiate the W&I Policy; or
(ii) fail conflicts with the instructions, requests or rights of the insurer under the W&I Policy.
7.4 If within fifteen (15) Business Days to notify fourteen days of service of the Buyers in writing of any further action to be taken by a Buyer or a Group Company notice under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by paragraph 7.1 the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely does not request the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at or fails within that period to give the time indemnity referred to in question either an employee or director of any member of paragraph 7.3(b) the Buyers’ Tax Group, or any company Buyer shall be free to procure that is at the time in question a member of Target takes the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms action as it may in its absolute discretion (acting in good faith) think fit and without prejudice to any of the Buyers’ its rights and remedies under this Schedule.
7.5 Subject to paragraphs 7.3 to 7.4, in relation to any dispute in respect of a Claim for Tax where any meeting is to take place with a representative or representatives of any Tax Authority, the Buyer shall provide the Seller with reasonable advance notice of the meeting together with an outline of the issues that it is anticipated will be addressed, and the Seller shall be entitled to nominate a person or persons to attend (but not participate in and only be present in the capacity as an observer) that meeting.
7.6 Paragraph 7.3 shall not apply and the Seller's rights under this paragraph 7 shall cease if a Tax Authority alleges that the Seller or the Target (before Completion) has committed acts or omissions which constitute or are alleged to constitute fraud or deliberate default relating to the matter giving rise to the Claim for Tax in question and the Buyer shall be free to procure that the Target takes the action that it may in its absolute discretion think fit.
7.7 The Buyer shall keep the Seller informed of the progress of any action in relation to a Claim for Tax conducted by the Buyer or the Target at the request of the Seller and shall promptly provide the Seller with copies of all material correspondence and documents relating to the same.
Appears in 1 contract
Samples: Share Purchase Agreement
Conduct of Claims. 6.1. 8.1 If a the Buyer or any of the Target Group Companies receives a Group Company becomes aware of Tax Assessment which relates in whole or in part to Taxation for which the Sellers may be liable under this Deed or any other notification from a Tax Authority which may give rise to a Tax Claim, the Buyer shall within 10 Business Days of receipt give written notice of the Tax Assessment or other matter to the Sellers.
8.2 Notwithstanding any other provision of this clause 8, it is hereby agreed that the Sellers shall have sole conduct of all or any proceedings of whatsoever nature arising in connection with:
(a) a Stamp Duty Charge under clause 2.3;
(b) a Degrouping Charge under clause 2.4; or
(c) a Lease VAT Charge under clause 2.5 (collectively, the “Sellers’ Proceedings”) provided that the Sellers shall not make any settlement or compromise of any Sellers’ Proceedings or take any other action in connection with the Sellers’ Proceedings under this clause 8 which will or is reasonably likely to materially adversely affect the future liability to Taxation or the business of the Target Group Companies or the Buyer’s Group.
8.3 The Buyer shall, or shall procure that the relevant Target Group Company or Companies shall, take such action and give such information and assistance in connection with the affairs of the relevant Target Group Company or Companies as the Sellers may reasonably request to resist, appeal, dispute, avoid or compromise the Tax Assessment or deal with any Sellers’ Proceedings, subject to the Buyer and/or any Target Group Company being indemnified to their reasonable satisfaction against all reasonable out-of-pocket costs and expenses which may be properly incurred thereby. Such information and assistance shall include, without limitation, providing reasonable access to relevant documentation and records and permitting the copying of such documentation and records.
8.4 For the avoidance of doubt, the actions which the Sellers may reasonably request under this clause 8 shall include (without limitation) the procuring of any Target Group Company to apply to postpone (so far as legally possible) the payment of any Taxation and/or allowing either or both of the Sellers to take on or take over at its own expense the conduct of all or any proceedings of whatsoever nature arising in connection with the Tax Claim in question. If the Seller(s) take on or take over the conduct of proceedings (including the Sellers’ Proceedings), the Buyer shall provide, and shall procure that any Target Group Company shall within a reasonable time give notice provide, such information and assistance as the Seller(s) may reasonably require in connection with the preparation for and conduct of those proceedings.
8.5 The following provisions shall apply in relation to the Seller conduct of the Tax Claim, provided always Sellers’ Proceedings or in the event that the giving of such notice shall not be a condition precedent to the liability either or both of the Seller under this Schedule.
6.2. If the Seller becomes aware Sellers elect to have conduct of a Tax Claim, claim in accordance with the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimset out above:
(a) the Buyer shall be kept informed of all material matters pertaining thereto and steps proposed to be taken by the Seller(s) and shall be entitled to receive copies of all material correspondence in connection with the claim in question;
(b) the Sellers shall provide the Buyer with drafts of material correspondence in relation to the Tax Assessment in question and shall provide the Buyer with an opportunity to comment thereon. The Sellers shall not unreasonably refuse to accept any such comments;
(c) the Sellers shall not make any settlement or compromise of any Taxation Assessment unless it has first notified the Buyer and any Target Group Company of the terms of such proposed settlement or compromise and the Buyer has given its consent in writing to such settlement or compromise (such consent not to be unreasonably withheld or delayed) but if such consent is refused the Sellers’ liability under the Tax Deed in relation to that Taxation Assessment shall be limited to a maximum of the amount for which the Sellers would have been liable if such consent had been forthcoming. For the avoidance of doubt, the Sellers shall not be entitled to require the Buyer or the Target Group Companies to make any settlement or compromise of any Taxation Assessment or take any other action or be under any obligation under this clause 8 which will or is reasonably likely to materially adversely affect the future liability to Taxation or the business of the Target Group Companies or the Buyer’s Group (save where such settlement or compromise relates to the use of a Sellers’ Relief).
8.6 In the event that neither of the Sellers has requested in writing that it be allowed to take on or take over the conduct of all or any proceedings pursuant to clause 8.4 in relation to the Tax Assessment or notification referred to in clause 8.1:
(a) the Buyer shall, and shall procure that any Target Group Company shall, provide the Sellers with copies of all material correspondence entered into and notes of any material conversations or meetings with any Taxation Authority to the extent that it would involve a Group Company contesting any Disputed such correspondence or notes relate to the Tax Claim before any court or other appellate body, unless Assessment in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; orquestion;
(b) where no material written communication shall be forwarded to any Taxation Authority in relation to that Tax Assessment without the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or prior written approval of the Seller at Sellers (such approval not to be unreasonably withheld or delayed) provided that if no such approval or notice that approval is to be withheld is received by the Buyer within 10 Business Days of request by the Buyer, the Buyer shall be entitled to forward such communication to any time or by or of a Group Company prior to the Closing; orTaxation Authority;
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Target Group Company (as the case may be) may satisfy shall not be at liberty without reference to the Sellers to admit, compromise (consent to which shall not be unreasonably withheld by the Sellers) or settle otherwise deal with any Tax Assessment unless either of the Sellers serves a notice on the Buyer to the effect that it considers that the Tax Liability Assessment should no longer be resisted provided that if neither of the Sellers serve such a notice on such terms the Buyer or on any Target Group Company within 10 Business Days of receipt of written notice from the Buyer or any Target Group Company that it intends to admit, compromise, or otherwise deal with the Tax Assessment, the Buyer or any member of the Target Group may admit, compromise or otherwise deal with the Tax Assessment as it the Buyer or Target Group Company may in its absolute discretion think fit without prejudice fit;
(d) for the purposes of clause 8.6(c), the Sellers shall act reasonably in refusing to consent to a claim being admitted or compromised by the Buyer if either of the Sellers has instructed leading Tax Counsel of at least ten years’ call (at the Sellers’ expense) and has been advised by such Counsel that the chances of success are greater than the chances of failure if the Tax Assessment is resisted further and either or both of the Sellers then elect to have conduct of such claim, complying in relation to such conduct with the obligations set out in clauses 8.4 and 8.5.
8.7 In the event of any dispute between the Sellers as to any of the Buyers’ rights matter arising under this Scheduleclause 8, the decision of Holdings on any such matter in dispute shall be final and binding.
Appears in 1 contract
Samples: Deed of Tax Covenant (NTL Inc)
Conduct of Claims. 6.1. 6.1 If a Buyer the Purchaser or a Group Company becomes the Companies and/or the Subsidiaries become aware of any matter which might give rise to a Claim (other than a Tax Claim, ) (“Third Party Claim”):
6.1.1 the Buyer Purchaser shall or as soon as is reasonably practicable give written notice to the Vendor of the Third Party Claim with such details as are reasonably available at that time and shall consult with the Vendor with respect to such matter;
6.1.2 the Purchaser shall (and shall procure that the relevant Group Company shall within a reasonable time give notice Companies and/or the Subsidiaries concerned shall) subject to paragraph 6.2 of this schedule provide to the Seller Vendor and its advisers reasonable access during normal working hours to premises and personnel and to relevant assets, documents and records within the Purchaser’s Group for the purposes of investigating the matter and enabling the Vendor to consider what action it should request be taken in accordance with paragraph 6.1.4 of this schedule;
6.1.3 the Vendor (at its cost) may take copies of the Tax Claimdocuments or records, provided always and photograph the premises or assets, referred to in paragraph 6.1.2;
6.1.4 the Purchaser shall (and shall procure that the giving Companies and/or the Subsidiaries concerned shall) subject to paragraph 6.2 of this schedule take such notice action and give such information and assistance in connection with the affairs of the Purchaser or the Companies and/or the Subsidiaries as the Vendor may reasonably request in writing to negotiate, avoid, dispute, resist, mitigate, compromise, defend or appeal against any Third Party Claim and any adjudication with respect thereto which shall include (without limitation) the Companies and/or the Subsidiaries applying to postpone (so far as legally possible) the payment of any taxation.
6.2 The Vendor shall indemnify the Purchaser and the Companies and/or the Subsidiaries to their reasonable satisfaction against all losses, damages and expenses properly incurred and reimburse to the Purchaser and the Companies and/or the Subsidiaries and all out-of-pocket expenses properly incurred by them in complying with their obligations under this paragraph 6.
6.3 The conduct of any proceedings of whatsoever nature arising in connection with any Third Party Claim shall, if the Vendor requests, be delegated entirely to the Vendor and in that connection the Purchaser shall give or cause to be given to the Vendor all such assistance as the Vendor may reasonably require in disputing any such Third Party Claim and shall instruct such solicitors or professional advisers as the Vendor may nominate to act on behalf of the Vendor, the Purchaser or the Companies and/or the Subsidiaries but in accordance with the Vendor’s instructions; provided however that (i) the Vendor will not consent to the entry of any judgement or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Purchaser (not to be unreasonably withheld or delayed) unless the judgement or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief on the Purchaser or any Target Group member, and (ii) the Vendor shall take into account all reasonable instructions given by the Purchaser with a view to avoiding any material adverse effect on any Target Group member, its business or the goodwill attaching thereto.
6.4 Unless and until the Vendor assumes the defence of the Third Party Claim as provided in the preceding paragraph, the Purchaser and/or any Target Group member may defend the Third Party Claim in any manner they may deem appropriate (but shall take into account all reasonable instructions given by the Vendor)provided that the Purchaser shall not, and shall ensure that no member of the Purchaser’s Group will, admit liability in respect of, or compromise or settle, the Third Party Claim without the prior written consent of the Vendor (such consent not to be unreasonably withheld or delayed).
6.5 The parties agree that any failure on the part of the Purchaser to comply with its obligations under this paragraph 6 will not affect (and shall not be a condition precedent to to) the liability of the Seller under this Schedulehereunder.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 For the purposes of this paragraph any action taken or authorised by and any notice or document given to the Holdings Vendors’ Representative shall be deemed to be taken or authorised by or given to each of the Warrantors and shall be binding on each of them.
4.2 If a Buyer the Purchaser or a Group Company becomes Holdings or HHL or any of the Subsidiaries become aware of any claim by a Tax third party against any of them (“third party claim”) which does or might reasonably be expected to give rise to a Claim or an Indemnity Claim, the Buyer Purchaser shall (or shall procure that the relevant Group Company shall within a reasonable time Holdings or HHL or any Subsidiary concerned shall) as soon as reasonably practicable give written notice to the Seller Holdings Vendors’ Representative of the Tax Claim, provided always that third party claim and shall consult with the giving of Holdings Vendors’ Representative with respect to such matter but such notice shall not be a condition precedent to the liability of the Seller under this ScheduleWarrantors;
4.3 Subject to paragraphs 4.4 and 4.6, at the request of the Holdings Vendors’ Representative, the conduct of any proceedings of whatsoever nature arising in connection with any such third party claim shall be delegated entirely to the Holdings Vendors’ Representative and in that connection the Purchaser shall give or cause to be given to the Holdings Vendors’ Representative all such assistance as the Holdings Vendors’ Representative may reasonably require in disputing any such third party claim and shall instruct such solicitors or other professional advisers as the Holdings Vendors’ Representative may nominate to act on behalf of the Warrantors, the Purchaser or Holdings or HHL or any relevant Subsidiary but in accordance with the Holdings Vendors’ Representative’s instructions.
6.2. 4.4 If any proceedings are delegated to the Seller becomes aware of a Tax ClaimHoldings Vendors’ Representative in accordance with clause 4.3, the Seller Holdings Vendors’ Representative shall notify keep the Buyers in writing as soon as reasonably practicable Purchaser fully and the Buyers shall be deemed to have given the Seller notice promptly informed of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (all material developments and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal not settle or compromise any Tax Claim (a “Disputed Tax Claim”) such claim on terms that involve the Purchaser or any matter relating member of the Xxxx Group in any continuing liability or obligation to the Disputed Tax Claim but only provided that third party claimant without the Seller shall first prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed taking into consideration the Buyers’ reasonable satisfaction) indemnify effect on the Buyers and/or business, reputation and goodwill of the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to TaxPurchaser’s Group).
6.4. Without prejudice to the liability foregoing, the Holdings Vendors’ Representative shall fully and promptly consult with the Purchaser as to the most effective way to approach the conduct of negotiations and/or proceedings relating to the third party claim (including how to avoid, contest, dispute, resist, appeal, compromise or defend the same), and take reasonable account of its proposals and suggestions (taking into account the same considerations referred to above as to the effect thereof on the business, reputation and goodwill of the Seller under this SchedulePurchaser’s Group).
4.5 Subject to paragraph 4.6, the Buyers Purchaser shall not, and shall ensure that no member of the Purchaser’s Group will, admit liability in respect of, or compromise or settle, the third party claim without the prior written consent of the Holdings Vendors’ Representative (such consent not to be unreasonably withheld or delayed).
4.6 The Purchaser and the members of the Xxxx Group shall not be obliged to take any action pursuant to, or procure to permit the taking Warrantors to take any action pursuant to paragraph 4.3 or to comply with paragraph 4.5 if:
4.6.1 the Holdings Vendors’ Representative has not complied with its obligations pursuant to paragraph 4.4;
4.6.2 any request made by the Holdings Vendors’ Representative pursuant to paragraph 4.3 is not made within a reasonable time (being not less than 15 Business Days) of receipt by the Vendors’ Representative of any action under Paragraph 6.3 in respect notice of any Tax Claim:
(a) third party claim given to the extent that it would involve Vendors’ Representative (and, in any event, in the case of a Group Company third party claim which requires an appeal to be made or other action to be taken within a specified period of time, at least two Business Days prior to the expiry of such specified period); and
4.6.3 such action involves contesting any Disputed Tax Claim before decision of any court or any other appellate bodybody (including any tribunal or court) unless they have been advised in writing, unless in at the written opinion expense of tax the Warrantors, by leading counsel of appropriate relevant experience appointed instructed by agreement between the Seller Purchaser and the Buyers or in default Holdings Vendors’ Representative that an appeal against such decision would have at least a 50% chance of agreement appointed being won by the President for Purchaser or the time being relevant member of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successXxxx Group; orand
(b) 4.6.4 save where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior Warrantors provide indemnities and security reasonably satisfactory to the Closing; or
(c) should the SellerPurchaser therefore, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further such action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely increase the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, Purchaser or any company that is at the time in question a relevant member of the Buyers’ Tax Xxxx Group for accounting periods ending after Completion.
4.6.5 subject to paragraph 1.1, the Purchaser and/or the relevant member of the Xxxx Group have not been indemnified to the reasonable satisfaction of the Purchaser against all costs, charges, taxation and expenses which may be thereby suffered or incurred by the Purchaser or the relevant member of the Xxxx Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Share Purchase Agreement (Circor International Inc)
Conduct of Claims. 6.15.1 The Sellers’ Representatives will act as the representatives of all the Covenantors (“the Representative Covenantors”) for the purposes of this clause 5. Should the Representative Covenantors be unable to act for any reason whatsoever, the Covenantors will vote to appoint, by simple majority, another of the Covenantors to act as the Representative Covenantor for the purposes of this clause 5 and shall notify the Buyer within five business days of such appointment and of the name and address of the new Representative Covenantor.
5.2 If a the Buyer or a Group the Company becomes aware after Completion of any matter which could give rise to a Claim or a claim under the Tax ClaimWarranties, the Buyer shall give or shall procure that the relevant Group Company shall within a reasonable time give there is given written notice of such matter as soon as reasonably practicable to the Seller of Representative Covenantor setting out such information as is available to the Tax Claim, Buyer or the Company (provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller Covenantors under this Schedule).
6.2. If the Seller becomes aware of a Tax Claim5.3 The Buyer shall, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies Company shall) , take such action (and provide such relevant information assistance and documentation to the Representative Covenantor in relation thereto) as the Seller Representative Covenantor may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, reduce, compromise or compromise defend any Tax Claim referred to in paragraph 5.1 and any adjudication in respect thereof (a “Disputed Tax Claimdispute”) or any matter relating subject to the Disputed Tax Claim but only provided that Buyer and the Seller shall first (Company being indemnified and secured to the Buyers’ Buyer’s reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required satisfaction by the Buyers) Covenantors against any all losses, damages, interest, penalties and surcharges and costs and expenses thereby incurred, and provided that:
5.3.1 save as described in this paragraph 5.3, the Covenantors shall not be permitted to take control or expenses which it may suffer conduct of such dispute in the name of the Company;
5.3.2 the dispute shall not be contested before any court or incur as a result of taking such action appellate body (including the First Tier Tax Tribunal in the UK and any additional liability to Tax).
6.4. Without prejudice to equivalent thereof outside the liability UK) unless at the sole expense of the Seller under this Schedule, Covenantors the Buyers Covenantors obtain the written opinion of leading Tax counsel of at least five years call (chosen by agreement between the parties or failing that the President of the Law Society) after disclosure of all relevant information and documents and having regard to all the circumstances that on the balance of probabilities the action will succeed;
5.3.3 neither the Buyer nor the Company shall not be obliged to take any action which will or procure may reasonably be expected to materially adversely affect the taking goodwill of the business carried on by, or the financial interests of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being member of the Institute of Chartered Accountants in England and Wales upon the application of either Buyer’s Group;
5.3.4 neither the Buyer or nor the Seller an appeal is a reasonable course of Company shall be obliged to take any action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action dispute derives from or arises out of or is in connection with any Tax Authority alleging any dishonest or fraudulent act or omission or willful wilful default by or of the Seller Covenantors at any time or by or of a Group the Company prior to Completion;
5.3.5 if the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax Taxation where it is a requirement for such an appeal that the Taxation be paid, neither the Buyer nor the Company shall be obliged to take any action unless payment has previously been made by the Seller Covenantors to a the Buyer of an amount equal to such Taxation and in respect of it; or;
(f) that requires a Group 5.3.6 neither the Buyer nor the Company shall be required to take any action against any person who is at the time in question either an employee or director of the Company or any member of the Buyers’ Buyer’s Tax Group, ; and
5.3.7 neither the Buyer nor the Company shall be required to make any settlement or compromise of the dispute nor agree any company that matter in the conduct of such dispute which will or is at likely to increase the time in question a amount thereof or adversely affect the future liability of any member of the Buyers’ Tax GroupBuyer’s Group to Taxation.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, 5.4 Subject to the relevant Buyer having complied with its obligations under paragraph 5.12 and 5.33 the Buyer or Group the Company may without reference to the Covenantors admit, settle, discharge, compromise or otherwise deal with any particular Claim to which paragraph 5.12 applies (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ their rights under this Schedule) if:
5.4.1 the Representative Covenantor serves a written notice on the Buyer to the effect that in relation to any such Claim (or any dispute in relation to such Claims) the Covenantors do not wish to exercise their rights under paragraph 5.33; or
5.4.2 a period of 20 Business Days has expired following the service of a written notice by the Buyer on the Representative Covenantor pursuant to paragraph 5.12 where the Representative Covenantor has made a request pursuant to paragraph 5.33 in respect of the relevant Claim but the Covenantors have failed to provide a duly executed indemnity and security; or
5.4.3 it is alleged by the Taxation Authority in question in writing that the Covenantors or the Company have committed any acts or omissions prior to Completion which constitute fraud or fraudulent or negligent conduct.
5.5 If the Representative Covenantor does not exercise its right to request the Buyer to take action pursuant to paragraph 5.33, it shall at the written request of the Buyer supply or procure the supply to the Company and the Buyer free of charge all information, books, papers and other documents in the possession or under the control of the Covenantors in relation to the relevant Claim and shall give or procure the giving as appropriate of such reasonable co-operation as the Buyer may reasonably request or require for the purpose of resisting any Claim.
5.6 The Buyer shall procure that the Representative Covenantors and the Covenantors duly authorised agents are (on reasonable notice in writing to the Buyer) afforded such reasonable access to the books, accounts, personnel, correspondence and documentation of the Company and such other reasonable assistance as may be reasonably required to enable the Covenantors to exercise their rights under this paragraph 5.
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a Group Company 5.1 Subject to any obligations that either of the Purchasers may have under any applicable policy of insurance, if either of the Purchasers becomes aware that any claim has been made against any member of the Group by a third party after Completion which is likely to result in either of the Purchasers being entitled to make a claim against the Warrantors by virtue of a Tax Claimbreach of any Warranty the Purchasers shall, and shall procure that any relevant member of the Group shall:
(a) give notice of such claim to the Warrantors as soon as reasonably practicable;
(b) not make any admission of liability, agreement or compromise with any person, body or authority in relation thereto without, where practicable, having first notified the Warrantors of its intention to do so (unless to so notify would be to the material detriment of the Purchasers or either of them or any member of the CKX Group);
(c) take such action as the Warrantors shall reasonably request to avoid, dispute, resist, compromise, defend or mitigate any such claim (other than any claim the avoidance, dispute, resistance, compromise, defence or mitigation of which would be likely to materially adversely affect the goodwill of the business of the relevant member of the CKX Group or any claim which seeks or in respect of which there has been granted injunctive relief) (and subject to the relevant member of the Group being entitled to employ its own legal advisers and being indemnified and secured to its reasonable satisfaction by the Warrantors against all Losses incurred in connection with such claim) provided that the Warrantors shall jointly and severally indemnify and hold harmless all members of the CKX Group against all Losses incurred by any of them arising from any action taken by any member of the CKX Group at the request of the Warrantors pursuant to this paragraph 5; and
(d) consult as fully as is reasonably practicable with the Warrantors as regards the conduct of any proceedings arising out of such claim.
5.2 Notwithstanding the preceding provisions of this Schedule, if at any time any of the Warrantors pay to either of the Purchasers an amount in respect of any claim and either of the Purchasers, the Buyer Company and/or any member of the Group subsequently becomes entitled to recover from any third party any sum in respect of the facts, matters or circumstances giving rise to the claim then the Purchasers shall or shall procure that the relevant Company and/or any member of the Group shall take all necessary steps to enforce such recovery unless to do so would, in the opinion of the Purchasers (acting reasonably) be to the material detriment of the Company or any member of the CKX Group. If the Purchasers, the Company and/or any Group Company shall within at any time recover any sum from a reasonable time give notice third party which is referable to the Seller of the Tax Claimfacts, provided always that the matters or circumstances giving of such notice shall not be a condition precedent rise to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 claim in respect of which any Tax Claim:of the Warrantors have paid any sum to either of the Purchasers then provided that there are no outstanding claims or disputes between the Purchasers or either of them and the Warrantors or either of them (or, if there are any such disputes or claims, following the final adjudication or settlement of them):
(a) if the amount paid by the Warrantors in respect of the claim is more than the Sum Recovered, the Purchasers shall immediately pay to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in Warrantors the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of successSum Recovered; orand
(b) where if the Tax Claim or action derives from or arises out of or is amount paid by the Warrantors in connection with any dishonest or fraudulent act or omission or willful default by or respect of the Seller at any time claim is less than or by or of a Group Company prior equal to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinionSum Recovered, the action requested by Purchasers shall immediately pay to the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of Warrantors an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of amount paid by the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.Warrantors;
Appears in 1 contract
Samples: Share Purchase Agreement (CKX, Inc.)
Conduct of Claims. 6.1. 6.1 If a Buyer the Purchaser or a the relevant Group Company becomes aware of a Tax Authority Claim in respect of a Tax Liability which will or may give rise to a Tax Claim, the Buyer shall Purchaser will (or shall will procure that the relevant Group Company shall within a reasonable time will) as soon as reasonably practicable give notice written details of the relevant matters to the Seller of Vendors (unless the Tax Claim, provided always that the giving Vendors already have written details of such notice shall matters) but such written details will not be a condition precedent to the liability of the Seller Vendors under this Schedule.
6.2schedule. If Such written details shall include such available information as the Seller becomes aware of a Tax Claim, Vendors may reasonably require to assess the Seller shall notify the Buyers in writing as soon as reasonably practicable quantum and the Buyers shall be deemed to have given the Seller notice merits of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2Authority Claim.
6.3. Subject to the following provisions of this Paragraph 6.36.2 The Purchaser will (and, the Buyers shall (and where relevant, shall will procure that the relevant Group Companies shallCompany will):
(a) take such action as the Seller Vendors may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Authority Claim (a “"Disputed Tax Claim”"); and
(b) afford the Vendors a reasonable opportunity to comment on the contents of any material correspondence sent by the Purchaser (or any matter relating the relevant Group Company) in relation to a Disputed Claim, before such correspondence is sent by the Purchaser (or the relevant Group Company), and will take into account the reasonable comments of the Vendors accordingly, subject to the Disputed Tax Claim but only provided that the Seller shall first Vendors agreeing (to the Buyers’ Purchaser's reasonable satisfaction) to indemnify the Buyers Purchaser and/or the relevant Group Companies Company (as required by the Buyersapplicable) against any losses, damages, reasonable costs or expenses which it they may suffer or properly incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall 6.3 Paragraph 6.2 will not be obliged to take or procure the taking of any action under Paragraph 6.3 apply in respect of any Tax Authority Claim:
(a) to the extent that it would involve a the relevant Group Company contesting any Disputed Tax Claim before any court or other appellate body, body (excluding the authority or body which has made the Disputed Claim) unless in the written opinion Tax counsel (of tax counsel of appropriate relevant experience at least ten years' experience) appointed by agreement between the Seller Vendors and the Buyers or Purchaser opines, in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller writing, that an appeal is a reasonable course or challenge against the Tax Authority Claim in question will, on the balance of action given all the circumstances including the likelihood of success; orprobabilities, be won;
(b) where the Tax Claim or action it derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time Vendors or by or of a Group Company prior to Completion or if the Closing; orPurchaser has reasonable grounds to believe that in connection with a Tax Authority Claim the conduct of the Vendors or a Group Company prior to Completion amounts to fraud;
(c) should if within the Seller, Response Period following the Vendors' receipt of written notice of the Tax Authority Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer Purchaser or a Group Company, the Vendors: 74 (xx) do not request that the Purchaser or the relevant Group Company takes any action under Paragraph 6.3 where a Buyer at any time seeks instructions from the Sellerparagraph 6.2; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. 4.1 If a the Buyer or a Group the Company becomes (or any of their officers, employees or agents) shall become aware of any Demand which will or is likely to give rise to a Tax Claim, the Buyer shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2the Tax Covenant or in respect of the Tax Warranties the Buyer shall give written notice thereof to the Seller. If The Buyer shall give such notice to the Seller becomes aware of on a Tax Claimtimely basis (having regard to any applicable time limit for appealing against or responding to the Demand) provided that where a statutory time limit is applicable for responding to or appealing against the Demand, the Seller Buyer shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller give written notice of the Tax Claim on Demand to the Seller no later than the tenth Business Day prior to the expiry of the said time limit or within 3 Business Days of its receipt of such notification for by the purpose of this Paragraph 6.2Buyer or the Company (whichever is the later).
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, 4.2 The Buyer shall procure that the relevant Group Companies shall) Company shall take such action as which the Seller may by written notice given to the Buyer reasonably request by notice in writing to avoid, dispute, defend, resist, appeal against, compromise, mitigate or compromise defend a Demand (any Tax Claim such action being an Action), provided always that:
(a “Disputed Tax Claim”a) or any matter relating in each case, the Buyer and the Company shall be indemnified to the Disputed Tax Claim but only provided that Buyer’s reasonable satisfaction by the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required against any third party costs and expenses and additional Taxes which may be incurred by the BuyersBuyer or the Company in taking the Action;
(b) against the Buyer and the Company shall not be obliged to comply with any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability request of the Seller under this Schedulewhich involves appealing, or otherwise taking any action in respect of, any Demand beyond the first appellate body (excluding the Taxation Authority which has made the Demand in question, the Buyers statutory pre-tribunal review, the Tax Chamber of the First-tier Tribunal and the Finance and Tax Chamber of the Upper Tribunal) unless the Seller furnishes the Buyer with the written opinion of Counsel of at least ten years call who is experienced in the subject matter of the Demand to the effect that an appeal in respect of the matter in question is reasonable; and
(c) the Buyer shall not be obliged to take or procure the taking of any action under Paragraph 6.3 Action in respect of relation to a Demand where any Tax ClaimAuthority alleges in writing (which allegation is neither disproved or withdrawn) fraudulent conduct or conduct involving dishonesty has been committed by the Seller or, prior to Completion, the Company in relation to such Demand.
4.3 The Buyer shall in relation to any Action:
(a) keep the Seller fully and promptly informed of all matters known to it or its advisers in connection with the Action;
(b) promptly provide to the extent Seller copies of all documents and correspondence related to the Action;
(c) procure that it would involve a Group Company contesting any Disputed Tax Claim before any court no substantive correspondence, pleading or other appellate bodydocument is sent, unless submitted, issued, entered into or in any way published by the Buyer, the Company or their advisers in connection with the relevant Action without the Seller’s prior written opinion consent, such consent not to be unreasonably withheld or delayed;
(d) procure that no Action in respect of tax counsel which the Seller could be required to make a payment under this Schedule is settled or otherwise compromised without the Seller’s prior written consent, such consent not to be unreasonably withheld or delayed; PROVIDED THAT:
(i) if the Seller does not request the Buyer to take any appropriate action within 20 Business Days of appropriate relevant experience notice to the Seller under paragraph 4.1, or
(ii) should the Seller become insolvent and corporate action, or other steps are taken or legal proceedings are started for its winding up, dissolution or administration or for the appointment of a receiver or administrator of the Seller, the Buyer shall (without prejudice to its rights under this Schedule) be free to satisfy or settle the Action on reasonable terms.
4.4 If there is a dispute between the Seller and the Buyer as to whether or not any action requested by the Seller under paragraph 4.2 is reasonable or whether or not the withholding or delay of any approval required pursuant to paragraph 4.3(c) or (d) is reasonable and the dispute is not resolved between the Seller and the Buyer, such dispute shall be referred for determination to an independent member of the Chartered Institute of Taxation or to an independent accountant specialising in Tax matters, in either case, of at least 10 years’ experience, appointed by agreement between the Seller and the Buyers Buyer or in default of agreement appointed (if they do not agree) upon the application made by either party to the President President, for the time being being, of the Chartered Institute of Chartered Accountants in England and Wales upon Taxation who shall also be authorised to determine how the application costs of either obtaining his opinion should be allocated between the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupparties hereto.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (OMNICELL, Inc)
Conduct of Claims. 6.1. 6.1 If the Purchaser exercises its right to pursue a Buyer Claim under the Share Warranties or a Group Company becomes aware of a Tax Claim, Indemnities:
6.1.1 the Buyer Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time forthwith give written notice to the Seller Warrantors of the Tax Claim, provided always that matter and shall initially consult with the giving of Warrantors with respect to such matter but such notice shall not be a condition precedent to the liability of the Seller under this ScheduleWarrantors;
6.1.2 the Purchaser shall provide to the Warrantors and their advisers reasonable access to premises and personnel and to relevant assets, documents and records of the Company and the Subsidiaries and the Purchaser for the purposes of investigating the matter and enabling the Warrantors to take the action referred to in paragraph 6.1.4; provided, that such access shall not require Purchaser to disclose any Confidential Information or otherwise adversely affect any privilege or other right of Purchaser or compromise Purchaser’s ability to pursue such Claim;
6.1.3 the Warrantors (at their cost) may take copies of the documents or records, and photograph the premises or assets, referred to in paragraph 6.1.2.
6.2. If 6.1.4 the Seller becomes aware of a Tax Claim, the Seller Purchaser shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action and give such information and assistance in connection with the affairs of the Purchaser as the Seller Warrantors may reasonably request by notice in writing to negotiate, avoid, dispute, defend, resist, mitigate, compromise, defend or appeal or compromise against any Tax Claim (a “Disputed Tax Claim”) or and any matter relating to the Disputed Tax Claim but only adjudication with respect thereto; provided that the Seller Warrantors shall first (reimburse the Purchaser for its and its subsidiaries’ internal cost of making personnel available and out of pocket fees, costs and expenses incurred in connection with this paragraph 6.1.4.
6.2 At the request of the Warrantors, and subject to the Buyers’ prior written consent of the Purchaser the conduct of any proceedings with a third party arising in connection with any such Claim shall be delegated entirely to the Warrantors and in that connection the Purchaser shall give or cause to be given to the Warrantors all such reasonable satisfaction) indemnify assistance as the Buyers and/or Warrantors may reasonably require at the sole expense of the Warrantors in disputing any such Claim and shall instruct such solicitors or other professional advisers as the Warrantors may nominate to act on behalf of the Warrantors or the Purchaser but in accordance with the Warrantors instructions; provided that Warrantors shall jointly and severally indemnify, defend and hold harmless the Purchaser Group Companies (as required for any losses incurred by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur Purchaser Group as a result of taking the conduct of any such action (including any additional liability to Tax)Claim by the Warrantors and/or their professional advisers.
6.4. Without prejudice to 6.3 If the liability of Warrantors do not request the Seller under this Schedule, the Buyers shall not be obliged Purchaser to take action pursuant to paragraphs 6.1.4 or procure 6.2 or shall fail to indemnify, defend, hold harmless and secure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer Purchaser in accordance with Paragraph 6.1:
(i) fail paragraph 6.2 within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member 14 days of the Buyers’ Tax Groupsaid written notice to the Warrantors the Purchaser shall be free to pay, settle or any company that is at otherwise handle the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability Claim on such terms as it may in its absolute discretion think fit without prejudice save that the Purchaser agrees that:
6.3.1 it will at all times take reasonable steps to mitigate any loss which the Warrantors may suffer in connection with such Claim; and
6.3.2 it shall at all times consult with the Warrantors in relation to such claim and consider in good faith the Warrantors’ suggestions or concerns in respect of any payment or settlement or the handling of the Buyers’ rights under this ScheduleClaim generally.
6.4 Except as otherwise provided herein, the Purchaser shall not, and shall ensure that no member of the Purchaser’s Group will admit liability in respect of, or compromise or settle, the matter without the prior written consent of the Warrantors (such consent not to be unreasonably withheld or delayed).
6.5 Except as otherwise provided herein, the Warrantors shall not admit liability in respect of, or compromise or settle, the matter without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Share Purchase Agreement (Stewart & Stevenson Services Inc)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer 8.1 The Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Covenantors as soon as reasonably practicable and the Buyers after it shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal or compromise any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that the Seller shall first (to the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking become aware of any action under Paragraph 6.3 Claim in respect of any Tax which a claim may be made pursuant to this deed and where there is a time limit for appealing the Claim:
(a) to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being within ten business days of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of receiving written notice of the Tax Claim, together with such relevant information and documentation concerning such Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, possession of the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax Purchaser or the business Company or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member agents of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company same (as the case may be) at that time.
8.2 Subject to the provisions of clause 8.3, following the receipt of written notice from all of the Covenantors stating that the Covenantors wish to have conduct of the Claim, the Purchaser shall and shall procure that the Company shall provide such assistance and take such action as the Covenantors may satisfy reasonably request to enable the Company to avoid, dispute, resist, compromise or settle defend any Claim and adjudication in respect thereof ("dispute") subject to the Tax Liability on Purchaser --------- and the Company indemnified and secured to the Purchaser's reasonable satisfaction by the Covenantors against all reasonable costs and expenses and all damages, interest, penalties and surcharges thereby incurred.
8.3 Subject to the provisions of this clause 8 any dispute shall be conducted by the Covenantors and:
8.3.1 the Covenantors shall keep the Purchaser fully informed of all relevant matters and shall promptly forward or procure to be forwarded to the Purchaser copies of all relevant correspondence and other relevant information and documentation received by them in connection with the dispute;
8.3.2 the Covenantors shall not and the Company shall not be required by the Covenantors to transmit to a Taxation authority any communications written or otherwise relating to the dispute which shall not first have been approved by the Purchaser such terms as it approval not to be unreasonably withheld or delayed;
8.3.3 the Covenantors shall not and the Company shall not be required by the Covenantors to make any settlement or compromise of the dispute nor agree any matter in the conduct of such dispute which is likely to materially increase the amount being the subject thereof or adversely affect the future liability of the Purchaser or the Company to Taxation to a material extent without the prior approval of the Purchaser such approval not to be unreasonably withheld or delayed.
8.4 The Purchaser or the Company may in its absolute discretion think fit without prejudice reference to any of the Buyers’ Covenantors admit, settle, discharge, compromise or otherwise deal with any outstanding or future Claim (without prejudice to their rights under this Scheduledeed) if:
8.4.1 the Covenantors serve a notice on the Company or the Purchaser to the effect that in relation to any such dispute the Covenantors do not wish to take up or continue the conduct thereof;
8.4.2 a period of 20 business days has expired following the service of notice by the Purchaser or, as the case may be, the Company on the Covenantors pursuant to clause 8.1 where either the Covenantors have not made a request to the Purchaser in accordance with clause 8.2 or the Covenantors have made such a request but have failed to provide a duly executed indemnity and security in a manner which may reasonably be required by the Purchaser within the said period;
8.4.3 a period of 20 business days has expired following the service of notice (other than a notice under clause 8.1) by the Purchaser or the Company on the Covenantors to the effect that the Covenantors are not using their reasonable efforts to conduct the dispute, if by the expiry of that period the Covenantors have not made reasonable efforts so to conduct the dispute; or
8.4.4 in the reasonable opinion of the Purchaser, the Covenantors or the Company have committed any acts or omissions prior to Completion which constitute fraud or wilful default.
8.5 The Covenantors shall be bound to accept for the purposes of the covenants contained in this deed any admission, settlement, discharge or compromise of any Claim and the outcome of any proceedings relating thereto made or arrived at in accordance with the procedures set out in clause 8.4.
8.6 If the Covenantors do not exercise their right to request the Purchaser to take action pursuant to clause 8.2, they shall give such reasonable co-operation as the Company or the Purchaser may reasonably request for the purpose of admitting, settling, discharging, compromising or otherwise dealing with the Claim in question.
Appears in 1 contract
Samples: Share Purchase Agreement (Dollar Financial Group Inc)
Conduct of Claims. 6.1. If a Buyer or a Group Company becomes aware of a Tax Claim, the Buyer 7.1 The Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Covenantors as soon as reasonably practicable (and in any event within 15 business days in the Buyers case of an assessment to Taxation) after it shall become aware of any Claim in respect of which a claim may be deemed made pursuant to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2deed.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers 7.2 The Purchaser shall (and where relevant, shall procure that the Company shall provide such relevant Group Companies shall) take such action information and documentation as the Seller Covenantors may reasonably request by notice in writing to avoid, dispute, defend, resist, appeal appeal, compromise or compromise defend any Tax Claim and any adjudication in respect thereof ("dispute") subject to the ------- Purchaser and the Company being indemnified and secured to the Purchaser's reasonable satisfaction by the Covenantors against all losses, costs, expenses, damages, interest, penalties and surcharges thereby incurred.
7.3 Subject to the provisions of this clause 7, any dispute relating to a “Disputed Tax Claim”) liability to Taxation shall be conducted by the Covenantors but:
7.3.1 the Covenantors shall keep the Purchaser fully informed of all relevant matters and shall promptly forward or any matter procure to be forwarded to the Purchaser copies of all relevant correspondence and other relevant information and documentation;
7.3.2 all communications written or otherwise relating to the Disputed Tax Claim but only provided that the Seller dispute which are to be transmitted to a Taxation authority shall first (be submitted to the Buyers’ reasonable satisfaction) indemnify Purchaser for approval and shall only be finally transmitted if such approval is given, such approval not to be unreasonably withheld;
7.3.3 the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs appointment of solicitors or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice other professional advisers shall be subject to the prior written approval of the Purchaser, such approval not to be unreasonably withheld;
7.3.4 the Covenantors shall make no settlement or compromise of the dispute nor agree any matter in the conduct of such dispute which is likely to increase the amount thereof or the future Taxation liability of the Seller Purchaser or the Company without the prior approval of the Purchaser, such approval not to be unreasonably withheld.
7.4 The Purchaser or the Company may without reference to any of the Covenantors admit, settle, discharge, compromise or otherwise deal with any outstanding or future Claim (without prejudice to their rights under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claimdeed) if:
(a) to 7.4.1 the extent that it would involve Covenantors serve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; orCompany or the Purchaser to the effect that in relation to any such dispute the Covenantors do not wish to take up or continue the conduct thereof;
(ii) fail within fifteen (15) Business Days to notify 7.4.2 a period of 15 business days has expired following the Buyers in writing service of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested notice by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; Purchaser or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy , the Company on the Covenantors pursuant to clause 7.1 where either the Covenantors have not made a request to the Purchaser in accordance with clause 7.2 or settle the Tax Liability Covenantors have made such a request but have failed to provide a duly executed indemnity and security in the manner stipulated by the Purchaser within the said period;
7.4.3 the Covenantors unreasonably delay or otherwise act unreasonably in dealing with any matter and the Purchaser has served notice on the Covenantors notifying them that they wish to take over conduct of the matter and the Covenantors do not deal with the outstanding matter within 15 business days of service of such terms as it may notice; or
7.4.4 the Covenantors or the Company have committed any acts or omissions prior to Completion which constitute fraud or wilful default.
7.5 The Covenantors shall be bound to accept for the purposes of the covenants contained in its absolute discretion think fit without prejudice this deed any admission, settlement, discharge or compromise of any Claim and the outcome of any proceedings relating thereto made or arrived at in accordance with the procedures set out in clause 7.4.
7.6 If the Covenantors do not exercise their right to request the Purchaser to take action pursuant to clause 7.2, they shall supply the Company and the Purchaser free of charge with all relevant information, books, papers and other documents in the possession or under the control of all or any of them and shall give or procure the Buyers’ rights under this Schedulegiving (as appropriate) of such statements and other reasonable co- operation by the Covenantors as the Company or the Purchaser may reasonably request or require for the purpose of resisting any Claim.
Appears in 1 contract
Samples: Share Purchase Agreement (Dollar Financial Group Inc)
Conduct of Claims. 6.1. 8.4.1 If a Buyer any party to this Agreement or a Group Company any Subsidiary Agreement (the CLAIMANT) becomes aware of any matter that may give rise to a claim against another party to this Agreement or any Subsidiary Agreement (the RECIPIENT) under this Agreement or the Subsidiary Agreements (other than in respect of a breach of the Warranty contained in paragraph 7 of Schedule 8 or under the Tax ClaimDeed of Covenant where the claim shall be dealt with in the manner set out in the Tax Deed of Covenant), notice of that fact shall be given to the Recipient as soon as practicable but any failure to give such notice shall not affect the rights of the Claimant except to the extent that the Recipient is prejudiced by such failure.
8.4.2 Without prejudice to the validity of the claim or alleged claim in question, the Buyer Claimant shall or allow, and shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller Associated Companies of the Tax ClaimClaimant allow, provided always that the giving Recipient and its accountants and professional advisers fully to investigate the matter or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of such notice claim and for such purpose the Claimant shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claimgive, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Associated Companies of the Claimant give, subject to the Recipient providing an indemnity in terms reasonably satisfactory to the Claimant in respect of all reasonable costs and expenses, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, as the Recipient or its accountants or professional advisers may reasonably request.
8.4.3 If the claim in question is a result of or in connection with a claim by or liability to a third party then:
(i) no admission of liability shall be made by or on behalf of the Claimant or an Associated Company of the Claimant and the claim shall not be compromised, disposed of or settled without the consent of the Recipient (such consent not to be unreasonably withheld or delayed);
(ii) the Recipient shall) , subject to providing an indemnity in terms reasonably satisfactory to the Claimant in respect of all costs, liabilities, claims and expenses which may be incurred by the Claimant as a result of and which would not have been incurred but for the same, be entitled at its own expense in its absolute discretion to take such action as the Seller may reasonably request by notice in writing it shall deem necessary to avoid, dispute, deny, defend, resist, appeal appeal, compromise or compromise any Tax Claim contest such claim or liability (a “Disputed Tax Claim”including, without limitation, making counterclaims or other claims against third parties) in the name of and on behalf of the Claimant or any matter relating Associated Company of the Claimant concerned and to have the Disputed Tax Claim but only provided conduct of any related proceedings, negotiations or appeals;
(iii) the Claimant will give and procure that the Seller shall first relevant Associated Companies of the Claimant give, subject to their being paid all reasonable out of pocket costs and expenses, all such information and assistance, including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, for the purpose of avoiding, disputing, denying, defending, resisting, appealing, compromising or contesting any such claim or liability as the Recipient or its professional advisers reasonably request. The Recipient agrees to keep (and to procure that any Associated Company to which such information is provided keep) all such information confidential and only to use it for such purposes.
8.4.4 To the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required extent any claim is covered by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result provisions of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability of the Seller under this ScheduleClause 12, the Buyers conduct of claims set out in that Clause shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) prevail to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless in the written opinion of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers or in default of agreement appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection conflicts with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Groupthis Clause 8.4.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Samples: Sale and Purchase Agreement (General Cable Corp /De/)
Conduct of Claims. 6.1. 5.1 If a Buyer or a Group Company becomes the Purchaser shall become aware of any claim which is likely to give rise to a Tax Claim, liability on the Buyer Covenantor hereunder the Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller by way of the Tax Claim, provided always that the giving of such notice shall covenant but not be as a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing Covenantor hereunder gives notice thereof or procure that notice thereof is given as soon as reasonably practicable practical to the Covenantor and the Buyers shall be deemed to have given the Seller notice if possible giving an estimate of the Tax Claim on receipt of sums involved and shall not make any communication with any taxation authority in relation to such notification for the purpose of this Paragraph 6.2claim.
6.3. Subject to 5.2 As regards any claim the following provisions of this Paragraph 6.3, the Buyers Purchaser shall (and where relevant, take or shall procure that the relevant Group Companies shall) Company shall take any such action as the Seller Covenantor may by written notice given to the Purchaser reasonably request by notice in writing cause the claim to avoid, be withdrawn or to dispute, defend, resist, appeal against, compromise or compromise defend the claim and any Tax Claim determination in respect thereof or to apply to postpone (a “Disputed Tax Claim”so far as legally possible) or the payment of any matter relating tax pending the determination of any appeal but subject to the Disputed Tax Claim but only provided that Purchaser and the Seller shall first (Company being indemnified and secured to the Buyers’ reasonable satisfaction) indemnify satisfaction of the Buyers and/or the Group Companies (as required Purchaser by the Buyers) Covenantor against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action all losses (including any additional liability to Tax).
6.4. Without prejudice to taxation liability) interest, costs, damages and expenses which may be thereby incurred by the liability of Purchaser or the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax ClaimCompany and provided that :
(a) any request made by the Covenantor pursuant to this Clause 5.2 shall be made within a reasonable time of receipt by the Covenantor of any notice given by the Purchaser to the extent that it would involve a Group Company contesting any Disputed Tax Claim before any court or other appellate body, unless Covenantor in accordance with Clause 5.1 and if on the written opinion expiry of tax counsel the period of appropriate relevant experience appointed by agreement between 14 days commencing on the Seller and the Buyers or in default date of agreement appointed receipt by the President for Covenantor of such notice the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action Covenantor shall not have given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written Purchaser notice of the Tax Claim from a Buyer Covenantor's intention in respect of the claim or shall not have provided satisfactory indemnities or securities in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on this Clause 5.2 the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify Purchaser and the Buyers in writing of any further action Company shall be entitled to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax Group.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy satisfied or settle or deal with the Tax Liability claim on such terms as it may they shall in its their absolute discretion think fit without prejudice to their rights and remedies under this Deed;
(b) the Purchaser and the Company shall not be obliged to comply with any request of the Buyers’ rights under Covenantor which involves contesting any assessment for taxation before any court or any other appellant body unless they have been advised in writing by leading tax Counsel instructed by agreement between the Purchaser and the Covenantor at the expense of the Covenantor that an appeal against the assessment for taxation in question will on the balance of probably be won by the Purchaser or as the case may be the Company;
(c) neither the Purchaser nor the Company shall be obliged to take any action which is likely to increase the future taxation liability of the Company in the group of companies of which the Purchaser is for the time being a member; and
(d) the Purchaser may require the Covenantor to take in the name of the Company the action requested in accordance with this ScheduleClause 5.2 on such terms as the Purchaser in its absolute discretion thinks fit.
5.3 The Purchaser shall procure that the Company ensures that a claim to which this Deed applies is so far as is reasonably practicable dealt with separately from claims to which it does not apply and that any claim to which it does apply is not paid prematurely.
5.4 The Purchaser shall supply to the Covenantor copies of all material written correspondence with the Inland Revenue in relation to any dispute, failed negotiations or other proceedings conducted by or at the request of the Covenantor pursuant to Clause 5.2.
Appears in 1 contract
Conduct of Claims. 6.1. If a Buyer or a Group Company 6.1 Without prejudice to paragraph 2.2 above, if any Asbestos Indemnified Person becomes aware of a Tax any Asbestos Claim or receives any material information in relation to any Asbestos Claim (including, for the avoidance of doubt, any Seller Asbestos Claim), the Buyer Purchaser shall or shall procure that the relevant Group Company shall within a reasonable time give notice to the Seller of the Tax Claim, provided always that the giving of such notice shall not be a condition precedent to the liability of the Seller under this Schedule.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers shall be deemed to have given the Seller notice of this awareness and/or information within 10 Business Days of receiving it.
6.2 For the Tax avoidance of doubt, Clause 12.5 shall not apply to the conduct of Seller Asbestos Claim on or Purchaser Asbestos Claim.
6.3 On and from the Closing Date, the Seller (or such member of the Seller’s Group as the Seller specifies) shall have exclusive control, management and conduct of all Asbestos Claims.
6.4 The parties agree that upon receipt of such notification for the purpose an Asbestos Claim Notice pursuant to paragraph 4.1 above in respect of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3any Purchaser Asbestos Claims, the Buyers Seller shall:
6.4.1 assume the conduct of such Purchaser Asbestos Claims and shall (and where relevant, shall procure that the relevant Group Companies shall) at its own expense take such action (including retention of counsel) as the Seller may reasonably request by notice in writing it shall deem necessary to avoid, dispute, deny, defend, resist, appeal appeal, compromise, settle or compromise contest such Purchaser Asbestos Claims, provided that, in respect of those Purchaser Asbestos Claims which in fact relate to any Tax Claim (a “Disputed Tax Claim”) or any matter relating to the Disputed Tax Claim but only provided that Group Company, the Seller shall first (to not accept any liability by or on behalf of any Asbestos Indemnified Person without the Buyers’ reasonable satisfaction) indemnify the Buyers and/or the Group Companies (as required by the Buyers) against any losses, damages, costs or expenses which it may suffer or incur as a result of taking such action (including any additional liability to Tax).
6.4. Without prejudice to the liability consent of the Seller under this SchedulePurchaser, such consent not to be unreasonably withheld or delayed;
6.4.2 have the Buyers shall not be obliged right at its option to take make counterclaims or procure the taking claims against third parties which may arise out of any action under Paragraph 6.3 Purchaser Asbestos Claims in the name of and/or on behalf of the relevant Asbestos Indemnified Person;
6.4.3 in respect of those Purchaser Asbestos Claims which in fact relate to any Tax Claim:
(a) Group Company and if so requested by the Purchaser in writing, keep the Purchaser informed as to the extent that it would involve a Group Company contesting progress of any Disputed Tax Claim before such Purchaser Asbestos Claims, inform the Purchaser of any court or other appellate body, unless material steps in such claims and consult with the written opinion of tax counsel of appropriate relevant experience appointed by agreement between Purchaser regarding any material decision regarding such claims.
6.5 The Purchaser agrees to co-operate reasonably with the Seller and the Buyers or in default of agreement appointed any action taken by the President for the time being of the Institute of Chartered Accountants in England and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is in connection with any dishonest or fraudulent act or omission or willful default by or of the Seller at any time or by or of a Group Company prior to the Closing; or
(c) should the Seller, following receipt of written notice of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
its rights under paragraphs 6.3 and/or 6.4 above and the Purchaser further agrees that (iwhether or not an Asbestos Claim Notice has been received and the provisions of paragraph 6.4 above thereby triggered) fail within fifteen the Purchaser will not (15and shall procure that no Asbestos Indemnified Person shall) Business Days to serve notice make any admission of liability by or on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing behalf of any further Asbestos Indemnified Person nor compromise, dispose of or settle any Purchaser Asbestos Claim or pursue any claim against any third party or take any other action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from which could potentially impact the Seller; or’s ability to defend, compromise, dispose of or settle any Purchaser Asbestos Claim or any Seller Asbestos Claim.
(d) if, in 6.6 The Seller agrees to comply with the Buyers’ Purchaser’s requests to take reasonable opinion, steps to reduce the action requested Purchaser’s and the Asbestos Indemnified Person’s indirect costs and to reimburse the Purchaser the reasonable direct costs incurred by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability Purchaser or any Asbestos Indemnified Person arising out of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made compliance by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupPurchaser with its obligations under paragraph 6.5 above.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
Appears in 1 contract
Conduct of Claims. 6.1. If 11.1 In case of an issue, matter or fact potentially giving rise to a Buyer Claim, the Party seeking damages or indemnification under this Agreement (the “Indemnitee”) from the other Party (the “Indemnitor”) shall (i) within reasonable promptness and in no case later than within a Group Company period of one month after the Indemnitee becomes aware of the matter, give written notice to the Indemnitor of the Breach, state the circumstances of the Breach in reasonable detail, furnish reasonable proof as it has in its possession of the Breach and, to the extent then feasible, set forth the estimated amount of such Breach and (ii) shall grant the Indemnitor the opportunity to remedy the Breach within a Tax reasonable period of time of at least 45 Business Days, provided, that the failure of the Indemnitee to give written notice to the Indemnitor within a period of one month shall relieve the Indemnitor from the indemnification obligations herein unless the Indemnitor is not actually prejudiced as a result of the failure to give such notice.
11.2 If claims are raised, legal or administrative proceedings commenced or threatened to be commenced against the Indemnitee by a third party, including government agencies (a “Third Party Claim”), which may give rise to a Claim, the Buyer Indemnitee shall or notify the Indemnitor in compliance with Section 11.1 of such Third Party Claim. The Indemnitee shall procure ensure that the Indemnitor shall (i) be provided with all materials, information (as it has in its possession) and assistance relevant Group Company shall within a reasonable time give notice in relation to the Seller Third Party Claim, (ii) be given reasonable opportunity to comment or discuss with the Indemnitee any measures which the Indemnitor proposes to take or to omit in connection with a Third Party Claim, and (iii) in particular, the Indemnitor shall be given an opportunity to comment on, participate in, and review any reports on social security audits, disputes or appeals or other measures and shall receive without undue delay copies of all relevant notices (Bescheide) of any authority.
11.3 If and to the extent the Indemnitor depends on the cooperation of the Tax ClaimIndemnitee, provided always the Indemnitee shall, to the extent legally possible for the Indemnitee, at the request and expense of the Indemnitor, take all reasonable steps the Indemnitor may reasonably request from the Indemnitee in that respect.
11.4 No admission of a Third Party Claim shall be made by or on behalf of the giving of such notice Indemnitee and the Third Party Claim shall not be a condition precedent to disposed of (erledigt) or settled (verglichen) without the liability prior written consent of the Seller under this ScheduleIndemnitor, which consent shall not be unreasonably withheld.
6.2. If the Seller becomes aware of a Tax Claim, the Seller shall notify the Buyers in writing as soon as reasonably practicable and the Buyers 11.5 The Indemnitor shall be deemed entitled at its own expense and its absolute discretion to have given the Seller notice of the Tax Claim on receipt of such notification for the purpose of this Paragraph 6.2.
6.3. Subject to the following provisions of this Paragraph 6.3, the Buyers shall (and where relevant, shall procure that the relevant Group Companies shall) take such action as the Seller may reasonably request by notice in writing Indemnitor shall deem necessary or appropriate to avoid, dispute, deny, defend, resist, appeal appeal, compromise or compromise any Tax contest such Third Party Claim (a “Disputed Tax Claim”including making counter claims or other claims against third parties) or any matter relating in the name of and on behalf of the Indemnitee provided, however, that the Indemnitor prior to such action has acknowledged in writing to the Disputed Tax Claim but only provided Indemnitee that the Seller shall first (to the Buyers’ reasonable satisfaction) Indemnitee will indemnify the Buyers and/or Indemnitee from such Third Party Claim. The Indemnitee shall give all such information and assistance, as described above, including access to premises and personnel and the Group Companies (right to examine and copy or photograph any assets, accounts, documents and records as required by the Buyers) against any losses, damages, costs Indemnitor or expenses which its professional advisors may from time to time request. The Indemnitor agrees to keep all such information confidential and only to use it may suffer or incur as a result of taking for such action (including any additional liability to Tax)purpose.
6.4. Without prejudice to the liability of the Seller under this Schedule, the Buyers shall not be obliged to take or procure the taking of any action under Paragraph 6.3 in respect of any Tax Claim:
(a) to 11.6 To the extent that it would involve the Indemnitor is in breach of a Group Company contesting any Disputed Tax Claim before any court or other appellate bodyguarantee, unless in the written opinion breach of tax counsel of appropriate relevant experience appointed by agreement between the Seller and the Buyers a covenant or in default case of agreement appointed an indemnification all costs and expenses incurred by the President for In- demnitor in defending such claim shall be borne by the time being of Indemnitor; if it turns out that the Institute of Chartered Accountants Indemnitor was not in England breach, any costs and Wales upon the application of either the Buyer or the Seller an appeal is a reasonable course of action given all the circumstances including the likelihood of success; or
(b) where the Tax Claim or action derives from or arises out of or is expenses reasonably incurred by it in connection with the defence (including adviser’s fees and internal costs of its staff) shall be borne by the Indemnitee.
11.7 The failure of any dishonest or fraudulent act or omission or willful default by or Indemnitee to comply with the obligations of the Seller at Indemnitee under this Section 11 shall release any time Indemnitor from its obligation to pay damages or by or to indemnify under this Agreement.
11.8 Any payments of a Group Company prior the Indemnitor to the Closing; or
(c) should the Seller, following receipt of written notice Indemnitee in connection with this Section 11 shall be considered as an adjustment of the Tax Claim from a Buyer in accordance with Paragraph 6.1:
(i) fail within fifteen (15) Business Days to serve notice on the Buyers under Paragraph 6.3; or
(ii) fail within fifteen (15) Business Days to notify the Buyers in writing of any further action to be taken by a Buyer or a Group Company under Paragraph 6.3 where a Buyer at any time seeks instructions from the Seller; or
(d) if, in the Buyers’ reasonable opinion, the action requested by the Seller pursuant to Paragraph 6.3 is likely to affect materially and adversely the liability of a Buyer or a Group Company to Tax or the business or financial interests of any of them; or
(e) if a Group Company would be required to appeal against any assessment or demand for Tax where it is a requirement for such an appeal that the Taxation be paid, unless payment has previously been made by the Seller to a Buyer of an amount equal to such Taxation and in respect of it; or
(f) that requires a Group Company to take any action against any person who is at the time in question either an employee or director of any member of the Buyers’ Tax Group, or any company that is at the time in question a member of the Buyers’ Tax GroupPurchase Price.
6.5. If Paragraph 6.3 does not apply by virtue of any provision in Paragraph 6.4, the relevant Buyer or Group Company (as the case may be) may satisfy or settle the Tax Liability on such terms as it may in its absolute discretion think fit without prejudice to any of the Buyers’ rights under this Schedule.
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Samples: Insulin Sale and Purchase Agreement (Mannkind Corp)