Common use of Contest Provisions Clause in Contracts

Contest Provisions. Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Parent in ------------------ writing upon receipt by Buyer, any of its Affiliates or any Company of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Parent may be liable pursuant to this Section 8.2; provided, ----------- -------- that failure to give notice pursuant to this Section 8.2(c)(i) will have no ----------------- effect on the indemnification obligations under this AgreementSection 8.2(a), except to the -------------- extent such failure materially prejudices the party entitled to notice. Seller, at its expense, Parent shall control have the complete defense of sole right to represent each Company's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding which Parent may be liable pursuant to information or document requests and managing any such audit or proceedingthis Section 8.2, and shall to employ counsel or other advisors of its choice at its ----------- expense; provided, howeverthat without the prior written consent of Buyer, that if a settlement or compromise which -------- consent may be withheld in the sole discretion of Buyer, Parent may not settle any such audit claim if such settlement would result in material adverse Tax consequences to Buyer Group Members with respect to taxable years or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof periods beginning after the Closing DateDate or, (i) Buyer shall be entitledwith respect to any Straddle Period, at its expense, to participate in the portion of such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Straddle Period beginning after the Closing Date; provided, however-------- further, that if in no case shall Buyer withhold consent where Parent shall ------- indemnify Buyer, in a settlement manner (and amount) then determined by Buyer to be reasonably acceptable, for the increase in tax liability to Buyer resulting from such settlement. (ii) In the case of any pending or compromise of threatened federal, state, local or foreign Tax audits, examinations or assessments pertaining to a Straddle Period with respect to which Parent and Buyer both have liability pursuant to Section 8.2(a), Buyer shall have the sole right to represent each Company's -------------- interests in any such audit or proceeding would proceeding; provided, that Parent shall be reasonably likely --------- entitled to increase participate at its expense in such audit or proceeding, and, with the Tax liability written consent of Seller Buyer and at Parent's sole expense, may assume the entire control of such audit or proceeding (iii) None of Buyer, any of its Affiliates or any Company may settle any Tax claim for a taxable period or portion thereof ending on or before any Taxes for which Parent may be liable pursuant to Section ------- 8.2 (a) without the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s prior written consentconsent of Parent, which consent shall not may be unreasonably ------ withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar yearsole discretion of Parent, provided, that in no case shall -------- Parent withhold consent where Buyer shall indemnify Parent, in a manner then determined by Parent to be reasonably acceptable, for the increase in Tax liability to Parent resulting from such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller The Acquiror shall promptly notify the other Parent in writing upon receipt by the Acquiror, any of its Affiliates, the Company or any Transferred Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect which might affect the Tax liabilities for which the Parent or any Affiliates of the Parent on the Closing Date (other than the Company or any Transferred Subsidiary) may be liable; provided, however, that a failure to do so shall not reduce the Parent’s liability under Section 7.03, except to the extent such failure adversely impacts the Parent’s ability to defend the audit or assessment. The Parent or its designee shall have the sole right to represent the Company’s and each Transferred Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxable periods ending on or before the Closing Date or otherwise relating to Taxes for which such other party the Parent (or any such Affiliates of the Parent on the Closing Date other party’s Affiliatesthan the Company or any Transferred Subsidiary) may be liable under this Agreement. Sellerliable, to settle such matters, and to employ counsel of its choice at its expense, except that Parent shall control not settle any such proceeding that would reasonably be expected to materially adversely affect the complete defense Acquiror, any of its Affiliates, the Company or any Transferred Subsidiary without the prior written consent of Acquiror (such consent not to be unreasonably withheld or delayed). In the case of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Taxable periods ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer subject to the subsequent clauses of this sentence, the Acquiror shall be entitled, at its expense, have the right to participate represent the Company’s and each Transferred Subsidiary’s interests in any such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year such Taxable periods, but the Parent or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, designee shall be entitled to participate at its expense in any such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or attributable to the portion of any such Taxable period beginning ending on or before and ending after the Closing Date, if including the Closing Date is and, with the written consent of the Acquiror (such consent not to be unreasonably withheld or delayed) and at the Parent’s or its designee’s sole expense, the Parent or its designee may assume the control of such entire audit or proceeding, but, in such case, Parent shall not settle any such audit or proceeding that would reasonably be expected to materially adversely affect the 2009 calendar yearAcquiror, any of its Affiliates, the Company or any Transferred Subsidiary without the prior written consent of the Acquiror (such defense shall consent not to be governed by unreasonably withheld or delayed). None of the second sentence Acquiror, any of this Section 6.5(i); and if its Affiliates, the Company or any Transferred Subsidiary may settle any Tax claim for any Taxes for which the Parent (or any Affiliates of the Parent on the Closing Date is in other than the 2010 calendar yearCompany or any Transferred Subsidiary) may be liable, without the prior written consent of the Parent (such defense shall consent not to be governed by the third sentence of this Section 6.5(iunreasonably withheld or delayed).

Contest Provisions. Each of (a) Buyer and Seller shall promptly (and in any event within fifteen (15) Business Days) notify the other Seller in writing upon receipt by Buyer, any of its affiliates or any Company or any Company Subsidiary of notice of any pending or threatened Federal, state, local or foreign audits or assessments with respect relating to Taxes which may affect the Tax liabilities of any Company or any Company Subsidiary for which such other party (Seller would be required to indemnify Buyer pursuant to Section 7.1(a) hereof; provided, however, that no failure or delay in giving any such other party’s Affiliates) may be liable notice shall relieve Seller of its obligations under this Agreement. Seller, at its expense, Seller shall control have the complete defense of sole right to represent the Companies' interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; providedprovided that with respect to any Company or Company Subsidiary for which Buyer and Seller have not made a valid election under Code Section 338(h)(10), howeverBuyer shall be given notice of, that if a and have the right to monitor all proceedings and to review in advance and comment on all submissions made by Seller in connection therewith. Notwithstanding the foregoing, Seller agrees not to take any position or enter into any agreement, settlement or compromise arrangement related to the treatment under the Code of any such audit insurance or proceeding would be reasonably likely to increase the Tax liability of Buyer annuity policies, plans, or contracts, any financial products and any similar related policies, contracts, plans or products, whether individual, group or otherwise issued, entered into or sold by Liberty Life, Liberty Bermuda or any Insurance Subsidiary that is inconsistent with the intended treatment under the Code of such polices, plans, contracts or products or take any other action that would affect their intended treatment under the Code without the consent of Buyer, which consent shall not be unreasonably withheld. (b) Seller shall be entitled to participate at its Affiliates own expense in the defense of any claim for Taxes for a taxable year or period or portion thereof beginning ending after the Closing DateDate which may be the subject of indemnification by Seller pursuant to Section 7.1(a) hereof and, (i) Buyer shall be entitledwith the written consent of Buyer, and at its sole expense, may assume the entire defense of such claim. None of Buyer, the Companies or the Company Subsidiaries may agree to participate in such audit settle any claim for Taxes for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by Seller under Section 7.1(b) Seller may not settle or compromise such audit or proceeding hereof without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of (i) Buyer and shall notify Seller shall promptly notify the other in writing upon receipt by Buyer, any of its Affiliates or, after the Closing Date, the Company of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any Pre-Closing Tax Period; provided, that failure to comply with respect this provision shall not affect Buyer’s right to Taxes for which indemnification under this Agreement except to the extent such other party (or failure materially impairs Seller’s ability to contest any such other partyTax liabilities. (ii) Seller shall have the sole right to represent the Company’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in any Tax audit or administrative or court proceeding relating to Taxes a Tax liability for which Seller would be required to indemnify Buyer Group Members pursuant to paragraph (a) of this Section 8.2 and that relates solely to a taxable year or period ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its Seller’s choice at its Seller’s expense; provided, however, that Seller shall have no right to represent the Company’s interests in any Tax audit or administrative or court proceeding unless (1) Seller shall have first notified Buyer in writing of Seller’s intention to do so and of the identity of counsel, if any, chosen by Seller in connection therewith, and (2) that Seller agrees with Buyer that, as between Buyer and Seller, Seller shall be liable for any Losses or Expenses relating to Taxes for a settlement Pre-Closing Tax Period that result from such audit or compromise of proceeding; provided, further, that Buyer and its representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any such audit or proceeding would proceeding. Notwithstanding the foregoing, neither Seller nor any Affiliate of Seller shall be reasonably likely entitled to increase settle, either administratively or after the Tax commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of any Buyer Group Member, the Company or any of its Affiliates Affiliate thereof for a taxable any period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without the prior written consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. withheld. (iii) Buyer shall, at its expense, control shall have the complete defense of sole right to represent the Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes Tax liabilities other than those for a taxable year or period beginning after the Closing Date; which Seller has exercised such right pursuant to paragraph (c)(ii) of this Section 8.2 and to employ counsel of Buyer’s choice at Buyer’s expense, provided, howeverthat Seller and its representatives shall be permitted, that if a settlement or compromise of at Seller’s expense, to be present at, and participate in, any such audit or proceeding would relating to Taxes arising or with respect to Pre-Closing Tax Periods, and, provided, further, that Buyer shall not be reasonably likely entitled to increase settle or compromise, either administratively or after the Tax liability commencement of Seller litigation, any such audit or any of its Affiliates for a taxable period proceeding relating to Taxes arising or portion thereof ending with respect to periods on or before the Closing Date, (i) Date without the prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayedwithheld. With Buyer shall have the sole right to defend the Company with respect to the defense of any issue, and settle or compromise any issue, arising in connection with any Tax audit or administrative or court proceeding relating to Taxes for a taxable year the extent Buyer shall have agreed in writing to forego any indemnification under this Agreement with respect to such issue and to indemnify Seller and hold Seller harmless from any Losses or period beginning Expenses resulting from any such settlement or compromise. In such case, Buyer agrees to keep Seller reasonably informed of the progress of any such audit or proceeding. (iv) Nothing herein shall be construed to impose on Buyer any obligation to defend the Company in any Tax audit or before and ending after the Closing Date, if the Closing Date is administrative or court proceeding. Any proceeding with respect to which Seller does not assume control in accordance with this Section 8.2(c) may be settled or compromised in the 2009 calendar yeardiscretion of Buyer, and any such defense settlement or compromise shall be governed by the second sentence of not affect any Buyer Group Member’s right to indemnification under this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Agreement.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Visant in writing upon receipt by Buyer or any of its Affiliates or Xxx Xxxxxxxx or any of the Transferred Subsidiaries of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect to Taxes which may materially affect the Tax Liabilities of Xxx Xxxxxxxx or any of the Transferred Subsidiaries for which Visant would be required to indemnify Buyer pursuant to Section 5.15(a), provided that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the extent Visant has been materially prejudiced as a result of such other party (failure. Visant shall have the right to represent Xxx Xxxxxxxx or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control of the complete defense of Transferred Subsidiaries’ interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverVisant shall not be entitled to settle, that if a settlement either administratively or compromise after the commencement of litigation, any such audit or proceeding claim for Taxes which would be reasonably likely adversely affect the liability for Taxes attributable to increase the Tax liability of Buyer Xxx Xxxxxxxx or any of its Affiliates the Transferred Subsidiaries for a taxable any period or portion thereof beginning after the Closing DateDate to any extent (including the imposition of income Tax deficiencies, (ithe reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without the prior written consent of Buyer’s written consent, which . Such consent shall not be unreasonably withheld or delayed. withheld, and shall not be necessary to the extent that Visant has indemnified Buyer shall, at its expense, control against the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise effects of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which may affect any Tax liability for which Seller is liable pursuant to Section 5.7 or Section 8.2(a), provided that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder except to the extent such other party (or failure impairs Seller's ability to contest any such other party’s Affiliates) may be liable under Tax liabilities. Except as otherwise provided in this Agreement. Sellerparagraph, at its expense, Seller shall control have the complete defense of sole right to represent each Company's interests in any Tax audit or administrative or court proceeding relating to taxable periods ending on or before the Closing Date (and any audit or proceeding relating to the determination of the Closing NOL Carryovers), and to employ counsel of its choice at its expense. Seller shall keep Buyer reasonably informed as to any material change or development in the status of any such audit or proceeding to the extent such change or development would reasonably be expected to have a material effect on the Taxes of the Companies, or any Affiliate thereof, for a any period after the Closing Date. Seller shall have the sole right to settle, either administratively or after the commencement of litigation, any proceeding relating to Taxes of either Company for any taxable year or period ending on or before the Closing Date, including responding Date (and any proceeding relating to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors the determination of its choice at its expensethe Closing NOL Carryovers); provided, however, that if a settlement or compromise of Seller shall not settle any such audit or proceeding claim for Taxes which would be reasonably likely to increase have an adverse effect on the Tax liability of Buyer Companies, or any of its Affiliates Affiliate thereof, for a taxable period or portion thereof beginning periods after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without the prior written consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayedand shall not be withheld, in any event, if Seller has indemnified Buyer against the effects of any such settlement. Buyer shallIn the case of any Straddle Period, Seller shall be entitled to participate at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of Buyer, that if a settlement or compromise and at Seller's sole expense, may assume the entire control of any such audit or proceeding would be reasonably likely to increase the Tax liability proceeding. None of Seller or Buyer, any of its Affiliates for a taxable period or portion thereof ending on either of the Companies may agree to settle any Tax claim which may be the subject of indemnification by Seller under Section 5.7 or before paragraph (a) of this Section 8.2 without the Closing Date, (i) prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence sole discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Acquired Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax Liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under this Agreementpursuant to Section 10.01(a) or Section 10.01(e). Seller, at its expense, Seller shall control have the complete defense of right to represent each Acquired Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Taxable periods ending on or before the Closing Date, including responding Date or otherwise relating to information Taxes for which Seller may be liable pursuant to Section 10.01(a) or document requests and managing any such audit or proceedingSection 10.01(e), and shall to employ counsel or other advisors of its choice at its expense; provided, howeverthat Buyer shall have the right to participate in any such proceeding with respect to Taxes imposed solely on the Acquired Companies that are not imposed or calculated on a combined, consolidated or unitary basis with Seller or any Affiliate of Seller; and provided, further, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or neither Seller nor any of its Affiliates may settle any such Tax claim that could reasonably be expected to affect the amount of Taxes for which the Acquired Companies are liable after the Closing Date without the written consent of Buyer, which consent may be withheld in the reasonable discretion of Buyer. In the case of a taxable Taxable period or portion thereof beginning before and ending after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or attributable to the portion of such period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date. None of Buyer, (iany of its Affiliates or any Acquired Company may settle any Tax claim for any Taxes for which Seller may be liable pursuant to Section 10.01(a) or Section 10.01(e), without the prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence reasonable discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of (a) In the event (i) Seller or its Affiliates or (ii) Buyer and Seller shall promptly notify the other in writing upon receipt of or its Affiliates receive notice of any pending or threatened Tax audits or assessments or other disputes concerning Taxes with respect to Taxes for which such the other party (or any such other party’s Affiliates) may be liable incur liability under this Agreement. SellerArticle VIII, at the party in receipt of such notice shall promptly notify the other party of such matter in writing, provided that failure to comply with this provision shall not affect a party's right to indemnification hereunder unless such failure materially adversely affects the party's ability to challenge such Tax audits or assessments. (b) Seller shall have the sole right to represent the interests of the Company and its expense, shall control the complete defense of Subsidiaries in any Tax audit or administrative or court proceeding relating to Taxes any Tax for a any taxable year or period ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverSeller shall not be entitled to settle, that if a settlement either administratively or compromise after the commencement of litigation, any such audit or proceeding claim for Taxes with respect to any Separate Return which would be reasonably likely to increase adversely affect the Tax liability for Taxes of Buyer or the Company and its Subsidiaries for any of its Affiliates for a taxable period or portion thereof beginning after the Closing DateDate to any extent (including, (ibut not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of the loss or credit carry forwards) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without the prior written consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. withheld, and such consent shall not be necessary to the extent that Seller has indemnified Buyer shall, at against the effect of any such settlement. (c) Buyer shall have the sole right to represent the interests of the Company and its expense, control the complete defense of Subsidiaries in any Tax audit or administrative or court proceeding relating to Taxes for a Separate Returns with respect to taxable year periods including (but not ending on) or period beginning after the Closing Date; providedDate and to employ counsel of its choice at its expense, howeverprovided that Buyer shall not be entitled to settle, either administratively or after the commencement of litigation, any claim regarding Taxes that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase adversely affect the Tax liability of Seller or for any of its Affiliates Taxes for a taxable any period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle Date or compromise such audit or proceeding without Seller’s written consentfor any Straddle Period, which consent shall not be unreasonably withheld or delayed. With respect and shall not be required to the defense extent that Buyer has indemnified Seller against the effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. (i) Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, hereunder. (ii) Seller (at its sole cost and expense) shall have the right to control all Tax proceedings and may make any decisions in connection with a Tax proceeding related to a Pre-Closing Tax Period or a Consolidated Tax Return; provided that: (A) the Buyer Indemnified Parties may at their own expense participate in the proceedings related to such Tax proceeding, (B) Seller shall control keep the complete Buyer Indemnified Parties reasonably and timely informed with respect to the commencement, status and nature of such Tax proceeding, (C) Seller shall consider any reasonable comments proposed by the Buyer Indemnified Parties that are related to the defense of any such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and (D) Seller shall employ counsel not settle, compromise or dispose of such Tax proceeding if such settlement, compromise or disposition would reasonably be expected to adversely affect the Tax liability of the Buyer Indemnified Parties in a Post-Closing Tax Period without the consent of the Buyer Indemnified Parties, such consent not to be unreasonably withheld, conditioned or delayed, provided, however, that with respect to Consolidated Tax Returns for any Pre-Closing Tax Period, only clause (D) above shall apply. (iii) With respect to any Tax proceeding related to a Straddle Period (other advisors of its choice at its expensethan a Tax with respect to a Consolidated Tax Return), Buyer shall have the right to control all proceedings and may make any decisions in connection with any Tax proceeding related to such Straddle Period; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Datethat, (iA) Seller may at its own expense participate in the proceedings related to such Tax proceeding, (B) Buyer shall be entitledkeep Seller reasonably and timely informed with respect to the commencement, at its expense, to participate in status and nature of such audit or Tax proceeding, and (iiC) Seller may Buyer shall not settle settle, compromise or compromise dispose of such audit or Tax proceeding without Buyer’s written consentthe consent of Seller, which such consent shall not to be unreasonably withheld withheld, conditioned, or delayed. . (iv) The Buyer shall, at its expense, Indemnified Parties shall have the right to control the complete defense of all proceedings and may make any decisions in connection with all Tax audit or administrative or court proceeding relating to Taxes proceedings for Post-Closing Tax Periods that do not include a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Straddle Period.

Contest Provisions. Each of In the event that after the Closing any Governmental Authority informs either the Seller or the Buyer and Seller shall promptly notify (or the other in writing upon receipt of notice Company) of any pending proposed or threatened audits actual audit or assessments examination with respect to Taxes for which such (a “Tax Audit”) with respect to any Pre-Closing Period, the party so informed shall notify each other party of such matter within twenty (20) Business Days after receiving such notice. No failure or delay in informing the other party shall reduce or otherwise affect the obligations or liabilities of any party hereto, except to the extent such other failure or delay shall have adversely affected the recipient party’s Affiliates) may ability to defend against any liability or claim with respect to such Taxes. Any notice shall be liable under this Agreementaccompanied by a copy of any written notice or other document received from the applicable Governmental Authority with respect to such matter. SellerSo long as the Seller diligently does so, the Seller shall have the right to control, at its expense, shall control the complete defense contest of the portions of any such Tax audit Audit for any Pre-Closing Period or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expenseStraddle Period; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely the Seller elects to increase control the Tax liability of contest, the Buyer or any of its Affiliates for a taxable period or portion thereof beginning after and the Closing Date, (i) Buyer Company shall be entitledhave the right, at its their expense, to participate in such audit or proceedingcontest. For avoidance of doubt, the Seller shall have the right to control the contest of the portion of any Tax Audits for all Straddle Periods although the Buyer and (ii) the Company shall have the right, at the Buyer’s expense, to participate in those portions of such Tax Audits that relate to Taxes of the Company for which the Buyer is required to indemnify under Section 7.7(a). The Seller may shall not settle or compromise such audit any issue related to Taxes of the Company which settlement or proceeding compromise would have any adverse impact on the liability for Taxes of the Buyer or the Company which is not subject to indemnification by Seller under this Section 7.7, without the Buyer’s written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed). Similarly, the Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit any issue related to Taxes of the Company which settlement or proceeding compromise would have any adverse impact on the liability for Taxes of the Seller or the Company which is not subject to indemnification by Buyer under this Section 7.7, without the Seller’s written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. (a) Each of Buyer Purchaser, on the one hand, and Seller Seller, on the other hand (the “Tax Indemnified Person”), shall promptly notify the chief tax officer (or other appropriate person) of Seller or Purchaser, as the case may be (the “Tax Indemnifying Person”), in writing upon within ten (10) Business Days of receipt by the Tax Indemnified Person of written notice of any pending or threatened audits audits, adjustments, claims, examinations, assessments or assessments other proceedings (a “Tax Audit”) which are likely to affect the liability for Taxes of such other party. If the Tax Indemnified Person fails to give such timely notice to the other party, it shall not be entitled to indemnification for any Taxes arising in connection with respect such Tax Audit if such failure to give notice adversely affects the other party’s rights to participate in the Tax Audit. (b) If such Tax Audit relates to any taxable period, or portion thereof, ending on or before the Closing Date or for any Taxes for which Seller is liable in full under this Agreement, Seller shall, at its expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to any taxable period, or portion thereof, beginning on or after the Closing Date or for any Taxes for which Purchaser is liable in full under this Agreement, Purchaser shall, at its expense, control the defense and settlement of such Tax Audit. (c) If such Tax Audit relates to Taxes for which such other party (or any such other party’s Affiliates) may be both Seller and Purchaser are liable under this Agreement, to the extent practicable, such Tax items will be distinguished and each party will control the defense and settlement of Taxes for which it is so liable. If such Tax Audit relates to a taxable period, or portion thereof, beginning before and ending after the Closing Date and any Tax item cannot be identified as being a liability of only one party or cannot be separated from a Tax item for which the other party is liable, Seller, at its expense, shall control the complete defense and settlement of any the Tax audit or administrative or court proceeding relating Audit, provided that such party defends the items as reported on the relevant Tax Return and provided further that no such matter shall be settled without the written consent of both parties, not to be unreasonably withheld. (d) Any party whose liability for Taxes for may be affected by a taxable year or period ending on or before the Closing Date, including responding Tax Audit shall be entitled to information or document requests participate at its expense in such defense and managing any such audit or proceeding, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if a expense and shall have the right to consent to any settlement or compromise of any such audit or proceeding Tax Audit (not to be unreasonably withheld) to the extent such settlement would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates have an adverse effect for a taxable period for which that party is not liable for Taxes, under this Agreement or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)otherwise.

Contest Provisions. Each of Buyer and Seller shall promptly notify (i) In the other in writing upon receipt of event any Buyer, any Target Company or any Target Subsidiary receives notice of any pending or threatened audits Tax audit, assessment or assessments with respect to other dispute concerning any Taxes for which such other party (Taxes any Seller or Seller Parent is required to provide indemnification pursuant to the indemnification provisions of this Article XI or any Taxes allocable to any Pre-Closing Period (any such audit, assessment or other party’s Affiliatesdispute, a “Contest”), Buyers’ Parent shall notify Sellers’ Representative promptly of such Contest pursuant to a Notice of Claim; provided, however, that failure of Buyers’ Parent to comply with this provision shall not affect Buyers’ right to indemnification pursuant to this Article XI unless such failure materially adversely affects the ability of such Seller to challenge such Contest. (ii) may be liable under this Agreement. Seller, at its expense, Sellers’ Representative shall control any Contest that relates to any Pre-Closing Tax Period (other than the complete defense pre-Closing portion of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceedingStraddle Period) , and shall be entitled to employ counsel of its choice at Sellers’ Representative’s expense; provided, however, that Sellers’ Representative shall keep Buyers’ Parent reasonably informed of the details and status of such Contest and at Buyers’ Parent’s request from time to time shall consult with Buyers’ Parent as to the conduct of and strategy for such Contest, and, at Buyers’ Parent’s expense, provide Buyers’ Parent with copies of all written material correspondence regarding such Contest; and provided further that Sellers’ Representative shall not compromise, resolve or other advisors settle, either administratively or after the commencement of litigation, any such Contest in a manner that would result in liability of a Buyers’ Indemnified Party for a Tax for which such Buyers’ Indemnified Party is not entitled to receive indemnification under this Article XI, without the prior written consent of Buyers’ Parent (such consent not to be unreasonably withheld, conditioned or delayed). If Sellers’ Representative fails to assume control of the conduct of any such Contest within a reasonable period following the receipt by Buyers’ Parent of notice of such Contest, Buyers’ Parent shall have the right to assume control of such Contest; provided, however, that (1) Sellers’ Representative shall have the right to participate (at its own expense) in, but not direct, any such Contest and (2) Buyers’ Parent shall keep Sellers’ Representative reasonably informed of the details and status of such Contest and at Sellers’ Representative’s request from time to time shall consult with Sellers’ Representative as to the conduct of and strategy for such Contest and, at Sellers’ Representative’s expense, provide Sellers’ Representative with copies of all written material correspondence regarding such Contest; provided further that Buyers’ Parent shall not compromise, resolve or settle, either administratively or after the commencement of litigation, any such Contest without the prior written consent of Sellers’ Representative, such consent not to be unreasonably withheld, conditioned or delayed. (iii) Buyers’ Parent shall control any Contest that relates to any Straddle Period and shall be entitled to employ counsel of its choice at its expense; provided, howeverthat, that if a settlement to the extent such Contest concerns Taxes for which any Seller or compromise Sellers’ Parent is required to provide indemnification pursuant to the indemnification provisions of any such audit this Article XI or proceeding would reasonably be reasonably likely expected to increase the Tax liability Pre-Closing Taxes that Sellers are obligated to pay pursuant to this Agreement, (x) Sellers’ Representative shall have the right to participate (at its own expense) in, but not direct, any such Contest; and (y) Buyers’ Parent shall keep Sellers’ Representative reasonably informed of Buyer the details and status of such Contest and at Sellers’ Representative’s request from time to time shall consult with Sellers’ Representative as to the conduct of and strategy for such Contest and, at Sellers’ Representative’s expense, provide Sellers’ Representative with copies of all written material correspondence regarding such Contest. Notwithstanding the foregoing, Buyers’ Parent shall not be entitled to compromise, resolve or any of its Affiliates for a taxable period settle, either administratively or portion thereof beginning after the Closing Datecommencement of litigation, (i) Buyer shall be entitled, at its expense, to participate any such Contest in such audit or proceeding, and (ii) a manner that would increase the liability for Taxes of any Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of Sellers’ Representative, which consent shall not be unreasonably conditioned, withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be required to the extent that Buyers’ Parent or a Buyer directly pays such additional amounts owed by the other party, if any, and agrees in writing with the other party not to seek indemnity from the other party against the effects of such settlement. If Buyers’ Parent fails to assume control of the conduct of any such Contest within a reasonable period following the receipt by Sellers’ Representative of notice of such Contest, Sellers’ Representative shall have the right to assume control of such Contest; provided, however, that (1) Buyers’ Parent shall have the right to participate (at its own expense) in, but not direct, any such Contest and (2) Sellers’ Representative shall keep Buyers’ Parent reasonably informed of the details and status of such Contest and at Buyers’ Parent’s request from time to time shall consult with Buyers’ Parent as to the conduct of and strategy for such Contest; provided further that Sellers’ Representative shall not compromise, resolve or settle, either administratively or after the commencement of litigation, any such Contest without the prior written consent of Buyers’ Parent, such consent not to be unreasonably withheld withheld, conditioned or delayed. With respect to . (iv) To the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after extent that it conflicts with Section 11.3(b), the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense 11.7(e) shall be governed by the third sentence of this Section 6.5(i)control with respect to all Contests.

Contest Provisions. Each of Buyer (i) Parent and Seller the Surviving Company shall promptly notify the other Stockholders’ Representative in writing upon receipt by Parent, the Surviving Company or any of their Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect which may affect the Tax liabilities of the Surviving Company for which any Company Indemnitor may be required to indemnify Parent pursuant to this Agreement (each, a “Tax Claim”). The Stockholders’ Representative shall have the right to represent the Surviving Company interests in and manage any Tax Claim that relates solely to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending periods that end on or before prior to the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely in order to increase assume the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, defense: (i) Buyer the Stockholders’ Representative must provide such written notice within ten (10) days after Parent giving notice of the assertion of any claim, or the commencement of any Tax Claim subject to this Section 5.9(b)(i), (ii) the defense of such Tax Claim can be conducted separately from the defense of any claim, suit, action or proceedings not subject to this Section 5.9(b)(i), (iii) the Pre-Closing Taxes which respect to which the Tax Claim relates must be less than the amount remaining in the Escrow Fund (or any Aggregate Milestone Merger Consideration that has been earned but not yet paid), less any other unresolved Asserted Damages Amount, (iv) the Stockholders’ Representative must select counsel that is reasonably acceptable to Parent, (v) the Stockholders’ Representative shall be entitled, at its expense, thereafter consult with Parent upon Parent’s reasonable request for such consultation from time to participate in time with respect to such audit or proceedingTax Claim, and (iivi) Seller may not settle or compromise such audit or proceeding the Stockholders’ Representative shall not, without BuyerParent’s prior written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall), at its expense, control the complete defense of agree to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and settlement. (ii) Buyer may With respect to any Tax Claim that the Stockholders’ Representative does not settle or compromise cannot elect to control pursuant to the preceding sentence, Parent shall have the right to control such audit or proceeding Tax Claim, including the defense and settlement thereof; provided that Parent shall thereafter consult with the Stockholders’ Representative upon the Stockholders’ Representative’s reasonable request from such time to time with respect to such Tax Claim to the extent it relates to Pre-Closing Taxes, and Parent shall not, without Sellerthe Stockholders’ Representative’s prior written consent, consent (which consent shall not be unreasonably withheld withheld, conditioned or delayed. With ) agree to any settlement with respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Pre-Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Taxes.

Contest Provisions. Each of Buyer Subject to the cooperation provisions in Section 4.2 and Seller Article V hereof and to this Section 4.3, Torchmark shall promptly notify have full responsibility and discretion in the other in writing upon receipt of notice handling of any pending or threatened audits or assessments Tax controversy with respect to Taxes any Tax Return which Torchmark is required to file or cause to be filed hereunder, including, without limitation, an audit, a protest to the Appeals Division of the IRS, other administrative appeals, and litigation in Tax Court or any other court of competent jurisdiction (a "Tax Controversy"). In the event a Tax Controversy involves items that could give rise to a payment of Tax for which such other party (or any such other party’s Affiliates) may WRFI would be liable under this Agreement. Sellerhereunder or otherwise or a refund of Tax for which WRFI would be entitled hereunder or otherwise (a "WRFI Item") and also involves items that could give rise to a payment of Tax for which Torchmark would be liable or a refund of Tax for which Torchmark would be entitled hereunder or otherwise (a "Torchmark Item"), at its expense, then Torchmark shall control advise and consult with WRFI with respect to such Tax Controversy and any proposed settlement thereof which affects the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceedingWRFI Items, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding any WRFI Item without Buyer’s written consent, WRFI's consent (which consent shall may not be unreasonably withheld or delayedwithheld). Buyer shallWRFI and its representatives, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its WRFI's expense, shall be entitled to participate in such proceedingsall conferences, meetings, or proceedings with any Tax Authority, the subject matter of which includes or affects any WRFI Item, and (ii) Buyer may not settle shall be entitled to participate in all appearances before any court, the subject matter of which includes or compromise such audit affects any WRFI Item. The right of WRFI to participate shall include, without limitation, discretion to control the content of documentation, protests, memoranda of fact and law and briefs, the conduct of oral arguments or proceeding without Seller’s written consentpresentations, which consent shall not be unreasonably withheld or delayed. With the selection of witnesses, and the negotiation of stipulations of fact with respect to the defense of any WRFI Items. In the event a Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning Controversy involves only WRFI Items, and has no affect on or before Torchmark Items, then upon request by WRFI, WRFI shall have full responsibility and ending after the Closing Date, if the Closing Date is discretion in the 2009 calendar yearhandling, at WRFI's expense, of such defense shall be governed by the second sentence of this Tax Controversy with Torchmark's cooperation as set forth in Section 6.5(i); 4.2 and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Article V hereof.

Contest Provisions. Notwithstanding Section 9.5: (i) Each of Buyer and Seller party shall promptly notify the other party in writing upon receipt by such party or any of their respective Affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations, claims or assessments with respect to Taxes the Purchased Assets (a “Tax Claim”) for which such other party is entitled to seek, or is seeking or intends to seek, indemnification pursuant to Article IX. (or any such other party’s AffiliatesA) may be liable under this Agreement. Seller, at its expense, Seller shall have the sole right to control the complete defense of any Tax audit Claim or administrative or court proceeding relating to income Taxes with respect to the Purchased Assets for a Pre-Closing Tax Period and to employ counsel of its own choice for such purpose and (B) Seller shall have the sole right to control any Tax Claim or administrative or court proceeding relating to non-income Taxes with respect to the Purchased Assets (the “Non-Income Taxes”) for a Pre-Closing Tax Period (other than a Straddle Period) and to employ counsel of its own choice for such purpose. Seller shall have the sole right to settle, either administratively or after the commencement of litigation, any proceeding relating to Non-Income Taxes for any Pre-Closing Tax Period (other than a taxable year or Straddle Period) except that the prior consent of Buyer (which shall not be unreasonably withheld) is required of a settlement that negatively and materially affects Buyer with respect to a tax period ending on or before after the Closing Date. In the case of any Straddle Period, including responding Seller shall be entitled to information participate at its expense in or document requests with respect to any Non-Income Tax Claim or administrative or court proceeding relating (in whole or in part) to Non-Income Taxes attributable to the portion of such Straddle Period ending after the Closing Date and, with Buyer’s consent and managing any at Seller’s sole expense, may assume the entire control of such audit or proceeding. From and after the Closing, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability none of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit compromise, or proceeding agree to settle or compromise, any Tax Claim relating to Non-Income Taxes relating to a Pre-Closing Tax Period without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify In the other in writing upon receipt of notice event that after the Closing any Governmental Entity informs either the Guarantors' Representative (or the Sellers) or the Purchaser (or the Company or its Subsidiaries) of any pending proposed or threatened audits actual audit, examination, adjustment, claim, assessment, or assessments demand concerning the amount of Taxes of the Company or any Subsidiary (an "Audit") with respect to Taxes for which such any periods closed before the Closing Date ("Pre-Closing Period"), the party so informed shall notify each other party of such matter within ten (10) Business Days after receiving such notice. No failure or delay in informing the other party shall reduce or otherwise affect the obligations or liabilities of any party hereto, except to the extent such failure or delay shall have materially and adversely affected the recipient party's ability to defend against any liability or claim with respect to such Taxes. Any notice shall be accompanied by a copy of any written notice or other party’s Affiliates) may be liable under this Agreementdocument received from the applicable Governmental Entity with respect to such matter. SellerSo long as the Guarantors' Representative diligently does so, the Guarantors' Representative shall have the right to control, at its expense, shall control the complete defense contest of the portions of such Audit for any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expensePeriod; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely the Guarantors' Representative elects to increase control the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after contest, the Closing Date, (i) Buyer Company and the Purchaser shall be entitledhave the right, at its their expense, to participate in such audit contest. For avoidance of doubt, the Purchaser and the Company (and not the Guarantors' Representative) shall have the sole right to control the contest of the portion of any Audit for the period open before and closed after the Closing Date and periods closed thereafter. No party hereto shall agree or proceeding, and (ii) Seller may not settle or compromise any issue related to Taxes of the Company or its Subsidiaries with respect to any Pre-Closing Period, which settlement or compromise would have any adverse impact on the liability for Taxes hereunder of any other party, without such audit or proceeding without Buyer’s written consent, other party's consent (which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of Buyer CNB and the Seller shall promptly notify the ------------------ each other in writing upon receipt by either of them, or any of their affiliates, or the Bank, of notice of any pending or threatened federal, state, local or foreign tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of the Bank for which such other party (or any such other party’s Affiliates) may Seller would be liable under required to indemnify CNB pursuant to this Agreement. Seller, at its expense, Seller shall control have the complete defense of sole right to represent the Bank's interests in any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitledchoice, at its expense. Notwithstanding the foregoing, Seller (A) shall consult with CNB with respect to participate the resolution of any issue that would affect CNB or the Bank in any way and to any extent, in the taxable periods subject to such audit proceeding or proceedingany other taxable periods (including, but not limited to, any resolution that would result in the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards to the Bank or CNB), and (iiB) Seller may shall not settle any such issue or compromise file any amended return relating to such audit or proceeding issue, without Buyer’s written consentthe consent of CNB, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at its expense in the defense of any claim for Taxes for a period described in Section 4.17(c) for the portion of the year or period ending on the Closing Date that is the subject of indemnification by Seller hereunder. Neither CNB nor the Bank may agree to settle any such proceedings, and (ii) Buyer may not settle claim for Taxes for the portion of the year or compromise such audit or proceeding period ending on the Closing Date that is the subject of indemnification by Seller hereunder without the prior written consent of Seller’s written consent, which consent shall not be unreasonably withheld withheld. Seller shall not settle any such claim, or delayed. With take any other action with respect to such claim, without the defense consent of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateCNB, if the Closing Date is in the 2009 calendar year, such defense which shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other Newpark in writing upon receipt by Purchaser, any of its Affiliates or the Transferred Entities of notice of any pending pending, proposed, threatened or threatened audits actual Tax audit or assessments with respect to Tax deficiency, assessment or other claim which may affect the Taxes for which such other party (any Pre-Closing Period or any such other party’s Affiliates) may Straddle Period for which Newpark would be liable under this Agreementpursuant to Section 7.1(a). SellerNewpark shall promptly notify Purchaser in writing upon receipt by Newpark, at its expenseNewpark Texas or any of their Affiliates of notice of any pending, proposed, threatened or actual Tax audit or Tax deficiency, assessment or other claim which may affect the Taxes for any Straddle Period for which Purchaser would be liable pursuant to Section 7.1(b). Newpark shall have the sole right to control the complete defense of in any Tax audit or administrative or court proceeding (a “Tax Contest”) relating to Taxes for a taxable year or period ending on or before the any Pre-Closing Date, including responding Period and to information or document requests and managing any such audit or proceeding, and shall employ counsel or and other advisors of its choice at its expense; provided, however, provided that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of Purchaser (together with its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (icounsel and other advisors) Buyer shall be entitled, at its expensesole cost, to participate in (but not control) any proceeding relating to any such Pre-Closing Period. In the event Newpark shall have the right to control any such Tax Contest, Purchaser shall, upon request of Newpark, execute any such document and take such other action as may be reasonably requested by Newpark to obtain an extension of the period during which the taxable year or period to which such Tax Contest relates remains subject to further audit or proceedingexamination. In the event of any Tax Contest relating to a Straddle Period of the Transferred Entities, (i) to the extent the issues can be separated into those for which Newpark would be liable under Section 7.1(a) and those for which Purchaser would be liable under Section 7.1(b), then each of Newpark, on the one hand, and Purchaser, on the other, shall control the defense of those issues for which it would be liable, employing counsel and other advisors of its own choice, at its expense, (ii) Seller with respect to all other issues, Purchaser shall be entitled to control the defense employing counsel and other advisors of its choice at its expense, provided that Newpark (along with counsel and other advisors of its choice) shall be entitled to participate in the defense of and to take over such defense if Purchaser is not prosecuting the defense diligently, vigorously and professionally. Neither Purchaser nor the Transferred Entities may not agree to settle any Tax claim which may affect the Taxes for which Newpark or compromise such audit or proceeding its Affiliates would be liable under Section 7.1(a) without Buyer’s the prior written consentconsent of Newpark, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shallFurther, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or neither Newpark nor any of its Affiliates may agree to settle any Tax claim which may affect the Taxes for a taxable period which Purchaser or portion thereof ending on or before the Closing Date, (iTransferred Entities would be liable under Section 7.1(b) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of Purchaser, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller (i) Newco shall promptly notify the other Cargill in writing upon receipt by Newco, any of its Affiliates or, after the Effective Date, any Contributed Subsidiary or any Subsidiary thereof of notice of any pending or threatened federal, state, local or foreign tax audits or assessments with respect to Taxes for which such other party (may materially affect the tax liabilities of any Contributed Subsidiary or any such other party’s AffiliatesSubsidiary thereof for any period beginning prior to the Effective Date. (ii) may be liable under this Agreement. Seller, at its expense, Cargill shall control have the complete defense sole right to represent the interests of each Contributed Subsidiary and each Subsidiary thereof in any Tax tax audit or administrative or court proceeding relating solely to Taxes tax liabilities for a taxable year which Cargill would be required to indemnify the Newco Indemnitees pursuant to paragraph (a) of this Section 9.24 and to employ counsel of Cargill’s choice at Cargill’s expense. Except for an audit or period ending on or before the Closing Dateproceeding relating to Cargill Retained Taxes, including responding Newco and its representatives shall be permitted, at Newco’s expense, to information or document requests be present at, and managing participate in, any such audit or proceeding to the extent related to a Contributed Subsidiary or any Subsidiary thereof. Nothing herein shall be construed to impose on Newco or any officer, employee or agent thereof any obligation to defend any Contributed Subsidiary or any Subsidiary thereof in any such tax audit or administrative or court proceeding. Except for an audit or proceeding relating to Cargill Retained Taxes, Cargill shall not settle, either administratively or after the commencement of litigation, any claim for taxes which would adversely affect the liability for taxes of any Contributed Subsidiary or any Subsidiary thereof for any period after the Effective Date without the prior written consent of Newco, which consent shall not be unreasonably withheld. (iii) Newco shall have the sole right to represent the interests of each Contributed Subsidiary and shall each Subsidiary thereof in any tax audit or administrative or court proceeding relating solely to tax liabilities for which Cargill would not be required to indemnify the Newco Indemnitees pursuant to paragraph (a) of this Section 9.24 and to employ counsel or other advisors of its Newco’s choice at its Newco’s expense; provided, however, that if no court proceeding may be brought in the corporate name of Cargill or a settlement or compromise Subsidiary of Cargill as in effect prior to the change in corporate name required by Section 9.18 without the prior written consent of Cargill in its sole and absolute discretion. Cargill and its representatives shall be permitted, at Cargill’s expense, to be present at, and participate in, any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates proceeding. (iv) Except for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such an audit or proceeding without Buyer’s written consentrelating to Cargill Retained Taxes, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of with respect to any Tax tax audit or administrative or court proceeding relating which jointly relates to Taxes Cargill and a Contributed Subsidiary or Subsidiary thereof for a taxable year periods beginning prior to the Effective Time, Cargill and Newco shall try to separate the proceedings into two proceedings, one solely regarding Cargill and one solely regarding the Contributed Subsidiary or period beginning after Subsidiary thereof. To the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely extent Cargill and Newco are able to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in separate such proceedings, and (ii) Buyer may not settle or compromise such audit or the proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense solely regarding Cargill shall be governed by the second sentence provisions of paragraph (c)(ii) of this Section 6.5(i); 9.24, and if the Closing Date is in proceeding solely regarding the 2010 calendar year, such defense Contributed Subsidiary or Subsidiary thereof shall be governed by the third sentence paragraph (c)(iii) of this Section 6.5(i)9.24. To the extent that Cargill and Newco are not able to separate such proceedings, Cargill and Newco shall cooperate with each other so that the contest of tax liabilities for which Cargill is responsible under paragraph (a)(i) of this Section 9.24 is governed to the greatest extent possible by paragraph (c)(ii) of this Section 9.24 and the contest of tax liabilities for which Newco is responsible under paragraph (a)(ii) of this Section 9.24 is governed to the greatest extent possible by paragraph (c)(iii) of this Section 9.24.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates, either of the Companies or any Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to this Agreement. Seller, at its expense, Section 7.2. (ii) Seller shall control have the complete defense of sole right to represent each Company’s and each Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding which Seller may be liable pursuant to information or document requests and managing any such audit or proceedingthis Section 7.2, and shall to employ counsel or other advisors of its choice at its expense; provided. None of Buyer, howeverany of its Affiliates, that if a settlement any of the Companies or compromise any Subsidiary may settle any Tax claim for any Taxes for which Seller may be liable pursuant to this Section 7.2, without the prior written consent of any such audit or proceeding would Seller, which consent may be reasonably likely to increase withheld in the Tax liability sole discretion of Seller. (iii) Seller shall promptly notify Buyer in writing upon receipt by Seller or any of its Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes for a taxable period or portion thereof beginning after the Closing Date, which Buyer is liable pursuant to this Section 7.2. (iiv) Buyer shall be entitled, at its expense, have the sole right to participate represent each Company’s and each Subsidiary’s interests in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; providedwhich Buyer may be liable pursuant to this Section 7.2, however, that if a settlement or compromise and to employ counsel of any such audit or proceeding would be reasonably likely to increase the Tax liability its choice at its expense. None of Seller or any of its Affiliates may settle any Tax claim for any Taxes for which Buyer may be liable pursuant to this Section 7.2, without the prior written consent of Buyer, which consent may be withheld in the sole discretion of Buyer. (v) Notwithstanding the foregoing clauses of this Section 7.2(c), in the case of any Straddle Period (other than a taxable period or portion thereof Straddle Period ending after the Cut-Off Date and on or before the Closing DateDate and other than a Straddle Period relating to property Taxes for which Buyer is wholly liable): (A) Seller and Buyer shall promptly notify the other party in writing upon receipt by Seller or Buyer, respectively, of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments relating to such Straddle Period, (iB) Seller, at its expense, Seller shall be entitled have the right to participate represent each Company’s and each Subsidiary’s interest in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes in respect of such Straddle Period, provided that Buyer shall be entitled to participate at its expense in any Tax Audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such Straddle Period beginning after the Cut-Off Date and, with the written consent of Seller, and at Buyer’s sole expense, may assume the entire control of such audit or proceeding, and (C) neither Seller nor Buyer nor any Affiliate of either of them may settle any Tax claim for a taxable year any Taxes relating to such Straddle Period without the prior written consent of the other party, which consent shall not be unreasonably withheld or period beginning delayed. (vi) Notwithstanding the foregoing clauses of this Section 7.2(c), in the case of any Straddle Period ending after the Cut-Off Date and on or before and ending after the Closing Date, if the Closing Date (other than a Straddle Period relating to property Taxes for which Buyer is wholly liable): (A) Buyer shall promptly notify Seller in writing upon receipt by Buyer or any of its Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments relating to such Straddle Period, (B) Seller shall have no obligation to notify Buyer upon receipt by Seller or any of its Affiliates of any such notice, (C) Seller shall have the sole right to represent each Company’s and each Subsidiary’s interest in any Tax audit or administrative or court proceeding relating to Taxes in respect of such Straddle Period, and (D) Seller shall have the sole right to settle any Tax Claim for any Taxes relating to such Straddle Period, and neither Buyer nor any Affiliate of Buyer may settle any Tax claim for any Taxes relating to such Straddle Period without the prior written consent of Seller, which consent may be withheld in the 2009 calendar year, such defense shall be governed by sole discretion of Seller. (vii) Notwithstanding the second sentence foregoing clauses of this Section 6.5(i7.2(c); and if the Closing Date is , in the 2010 calendar yearcase of any Straddle Period relating to property Taxes for which Buyer is wholly liable: (A) Seller shall promptly notify Buyer in writing upon receipt by Seller or any of its Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits, examinations or assessments relating to property Taxes imposed with respect to such defense Straddle Period, (B) Buyer shall have no obligation to notify Seller upon receipt by Buyer of any such notice, (C) Buyer shall have the sole right to represent each Company’s and each Subsidiary’s interest in any Tax audit or administrative or court proceeding relating to property Taxes in respect of such Straddle Period, and (D) Buyer shall have the sole right to settle any Tax Claim for property Taxes relating to such Straddle Period, and neither Seller nor any Affiliate of Seller may settle any Tax claim for property Taxes relating to such Straddle Period without the prior written consent of Buyer, which consent may be governed by withheld in the third sentence sole discretion of this Section 6.5(i)Buyer.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other ECA in writing upon receipt by Buyer, any of its Affiliates or Mountaineer of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of Mountaineer for which such other party (or ECA would be required to indemnify Buyer pursuant to Section 11.02(a)(i), provided that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder. ECA shall have the sole right to represent Mountaineer's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverECA shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of the Buyer or Mountaineer for any period after the Closing Date to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Buyer. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that if a settlement or compromise ECA has indemnified the Buyer against the effects of any such audit or proceeding would settlement. ECA shall be reasonably likely entitled to increase participate at its expense in the Tax liability defense of Buyer or any of its Affiliates claim for Taxes for a taxable year or period or portion thereof beginning ending after the Closing DateDate which may be the subject of indemnification by ECA pursuant to Section 11.02(a)(i) and, (i) Buyer shall be entitledwith the written consent of Buyer, and at its sole expense, may assume the entire defense of such tax claim. Neither Buyer nor Mountaineer may agree to participate in such audit settle any tax claim for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by ECA under Section 11.02(a)(i) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of ECA, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify After the other Closing Date, in writing upon receipt of notice the case of any pending audit, examination, claim or threatened audits or assessments other proceeding (“Proceeding”) with respect to Taxes for which such other party (Aon is or any such other party’s Affiliates) may be liable under or entitled to a refund pursuant to this Agreement. Seller, at its expense, Buyer shall control the complete defense promptly inform Aon of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceedingProceeding, and shall employ counsel afford Aon, at Aon’s expense, the opportunity to control the conduct of such Proceedings and initiate any claim for refund, file any amended return or take any other advisors of its choice at its expenseaction which Aon deems appropriate with respect to such Taxes; provided, however, that if Aon chooses to control such Proceeding and such Proceeding is reasonably expected to affect Taxes for which Buyer is liable, Buyer shall be entitled to participate at its expense. Buyer shall execute or cause to be executed powers of attorney or other documents necessary to enable Aon to take all actions desired by Aon with respect to such Proceeding to the extent such Proceeding may affect the amount of taxes for which Aon is liable or entitled to a settlement refund pursuant to this Agreement. Any Proceeding with respect to Taxes for a period which includes but does not end on the Closing Date shall be controlled by Buyer, but Aon shall be entitled to participate at its expense. Notwithstanding any provision of this Section 8.1 to the contrary, Aon shall not settle any Proceeding, initiate any claim for refund or compromise file any amended Tax Return without the prior written consent of any Buyer, which consent shall not be unreasonably withheld, if, as result of such audit Proceeding, claim for refund or proceeding would be reasonably likely to increase amended Tax Return, the Tax liability of Taxes payable by Buyer or any of its Affiliates the Company for a taxable period for which Aon is not obligated to indemnify Buyer or portion thereof beginning after the Closing Datecompany pursuant to this Section 8.1 would likely be increased. Notwithstanding any provision of this Section 8.1 to the contrary, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle any Proceeding, initiate any claim for refund or compromise such audit or proceeding file any amended return without Buyer’s the prior written consentconsent of Aon, which consent shall not be unreasonably withheld if, as a result of such Proceeding, claim for refund or delayed. Buyer shallamended Tax Return, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year which Aon is obligated to indemnify Buyer or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely company pursuant to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall 8.1 would likely be governed by the third sentence of this Section 6.5(i)increased.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Sellers in writing upon receipt by Buyer or any of Buyer’s Affiliate, or, after the Closing Date, the Targets, of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any taxable period ending on or before the Closing Date or to any Straddle Period; provided, that failure to comply with respect this provision shall not affect Buyer’s right to Taxes for which indemnification under this Agreement except to the extent such other party (or failure materially impairs Sellers’ ability to contest any such other party’s AffiliatesTax liabilities. (ii) may be liable under this Agreement. Seller, at its expense, Sellers shall control have the complete defense of sole right to represent the Targets’ interests in any Tax audit or administrative or court proceeding relating to Taxes a Tax liability for which Sellers would be required to indemnify any Buyer Indemnitee pursuant to paragraph (a) of this Section 9 and that relates solely to a taxable year or period ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its such Seller’s choice at its such Seller’s expense; provided, however, that such Seller shall have no right to represent any Target’s interests in any Tax audit or administrative or court proceeding unless (A) such Seller shall have first notified Buyer in writing of such Seller’s intention to do so and of the identity of counsel, if a settlement or compromise of any, chosen by such Seller in connection therewith, and (B) that such Seller agrees with Buyer that, as between Buyer and such Seller, such Seller shall be liable for any Adverse Consequences relating to Taxes that result from such audit or proceeding would be reasonably likely to increase the Tax liability of proceeding; provided, further, that Buyer or any of and its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer representatives shall be entitledpermitted, at its Buyer’s expense, to participate in be present at any such audit or proceeding, and (ii) Seller may not settle or compromise such other than any audit or proceeding relating to any consolidated Income Tax Return. Notwithstanding the foregoing, neither Sellers nor any Affiliate of Sellers shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of Buyer or any Buyer Affiliate or the Targets for any period after the Closing Date to any extent unless Sellers have indemnified Buyer and each Buyer Affiliate (including the Targets) against the effects of any such settlement (including the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Buyer’s written consent, which consent . (iii) Buyer shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control have the complete defense of sole right to represent the Targets’ interests in any Tax audit or administrative or court proceeding relating to Taxes Tax liabilities other than those for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise which Seller has exercised such right pursuant to paragraph (f)(ii) of any such audit or proceeding would be reasonably likely this Section 9 and to increase the Tax liability employ counsel of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, Buyer’s choice at Buyer’s expense. (iiv) Seller, at its expense, Nothing herein shall be entitled construed to participate impose on Buyer any obligation to defend the Targets in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating under Section 9(f)(ii) or Section 9(f)(iii). Any proceeding with respect to Taxes for a taxable year which Sellers do not assume control in accordance with this Section 9(f) may be settled or period beginning on or before and ending after the Closing Date, if the Closing Date is compromised in the 2009 calendar yeardiscretion of Buyer, and any such defense settlement or compromise shall be governed by the second sentence of not affect any Buyer Indemnitees right to indemnification under this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Agreement.

Contest Provisions. Each a. General Partner shall be entitled to contest, as tax matters partner of Buyer and Seller CTA in accordance with the CTA Agreement as part of the unified audit of CTA, any claim in respect of any "partnership" item of CTA that, if successful, would result in a Tax Event (a "Partnership Level Issue"). Indemnitee shall promptly notify take such action or refrain from taking such action as may be reasonably necessary in order to cause each item which is the other subject of a potential Tax Event to be contested as a Partnership Level Issue. If General Partner contests a Partnership Level Issue that, if successful, would result in writing a Tax Event, Prime's obligation to pay any Tax Indemnity Amounts shall, at Prime's election, be deferred until thirty (30) days after a Final Determination of the Indemnitee's federal income tax liabilities in respect of a Tax Event, provided that, upon receipt of notice the 30-day letter from the Internal Revenue Service, Prime furnishes the Indemnification Security. b. If an audit or proceeding involving a potential Tax Event is being conducted in a proceeding involving Indemnitee which cannot be transferred to CTA as a partnership item (an "Indemnitee Level Issue"), Indemnitee hereby agrees to promptly notify Prime in writing of such adjustment, and Indemnitee shall, at Prime's request, diligently contest such matter and tender the defense of the Indemnitee Level Issue to such legal counsel as Prime may select and which is reasonably acceptable to Indemnitee ("Contest Counsel"). Indemnitee agrees to reasonably cooperate with Prime and Contest Counsel in connection with any pending or threatened audits or assessments such proceedings and to follow the advice of Contest Counsel with respect to Taxes for which decisions as to whether to contest such Indemnitee Level Issue, the extent and choice of forum with respect to such contest and other material issues relating thereto. Contest Counsel shall represent Indemnitee only in connection with such issues as could potentially result in a Tax Event with respect to Indemnitee, and, unless Indemnitee, in his sole discretion, otherwise consents, Contest Counsel shall not represent Indemnitee with respect to any other issues, without regard to whether such other party (issues are being concurrently challenged by the Internal Revenue Service or any such other party’s Affiliates) may be liable under this Agreementtax authority or appear on the same tax return as the Indemnitee Level Issue in question. Seller, at its expense, Prime shall control have the complete defense of any Tax audit or administrative or court proceeding right to consult with Contest Counsel and Indemnitee on decisions relating to Taxes for a taxable year or period ending on or before strategy and potential courses of action with regard to such Indemnitee Level Issue. Indemnitee shall make available to Contest Counsel copies of Indemnitee's tax returns and other information and materials pertinent to the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors contest of its choice at its expensethe Indemnitee Level Issue; provided, however, that if any information relating to matters other than the Indemnitee Level Issue in question are included in materials furnished to Contest Counsel, such materials shall be furnished only upon the agreement by Contest Counsel to maintain such information on a strictly confidential basis and to not disclose any such information to any person (including without limitation Prime, General Partner or any Affiliates of either of them) without the prior written consent of Indemnitee. c. If Prime recommends acceptance of a settlement offer in respect of an Indemnitee Level Issue or compromise if General Partner recommends the acceptance of a settlement offer in respect of a Partnership Level Issue, but the Indemnitee declines to accept such offer in writing within 30 days (i) the obligation of Prime to make indemnity payments as the result of any such audit contest or proceeding proceedings shall not thereafter exceed the obligation that it would be reasonably likely to increase have had if such contest had been settled or proceedings terminated on the Tax liability of Buyer basis recommended by Prime or any of its Affiliates for a taxable period or portion thereof beginning after the Closing DateGeneral Partner, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceedingas applicable, and (ii) Seller in the case of an Indemnitee Level Issue, Prime shall have no further liability for costs or other expenses in respect of such contest. d. Notwithstanding the foregoing, Indemnitee will not have any obligation to contest any action with respect to an Indemnitee Level Issue (i) unless such items could give rise to a federal income tax liability (disregarding other items in the assessment and considering effects in future years) in excess of $25,000, (ii) unless Prime furnishes the Indemnification Security as set forth herein, (iii) without Prime paying when due, reasonable third-party costs and out-of-pocket expenses including reasonable legal, witness and accounting fees and other expenses and, in the case of proceedings before the Court of Federal Claims or Federal District Court (subject to the agreement by Prime to not litigate in Tax Court, which agreement may be withheld in Prime's sole discretion), the amount of tax (and any applicable interest and penalties) for which refund is claimed, and (iv) to the extent Indemnitee waives in writing Prime's obligation to indemnify Indemnitee for such items, in which case all third-party costs and out-of-pocket expenses described in clause (iii) thereafter incurred by Indemnitee and all taxes of Indemnitee would be paid by Indemnitee. e. Indemnitee shall not settle or compromise such audit or proceeding any Indemnitee Level Issue without Buyer’s Prime's prior written consent, which consent ; provided that Indemnitee shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of required to contest any proposed adjustment and may settle any such proposed adjustment if Indemnitee shall waive his right to indemnity under this Agreement with respect to such adjustment and any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after Event that results from such adjustment and, in the Closing Date; provided, however, that if a settlement or compromise case of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or proceedings before the Closing Date, (i) Seller, at its expenseCourt of Federal Claims or Federal District Court, shall be entitled pay to participate in such proceedings, Prime the amount of tax (and (iiany applicable interest and penalties) Buyer may not settle previously paid or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With advanced by Prime with respect to such adjustment or the defense contest of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)adjustment.

Contest Provisions. Each of (a) In the event (i) either Seller or their Affiliates or (ii) Buyer and Seller shall promptly notify the other in writing upon receipt of or its Affiliates receive notice of any pending or threatened Tax audits or assessments or other disputes concerning Taxes with respect to Taxes for which such the other party may incur liability under this Article VIII, the party in receipt of such notice shall promptly notify the other party of such matter in writing, provided that failure to comply with this provision shall not affect a party's right to indemnification hereunder unless such failure materially adversely affects the party's ability to challenge such Tax audits or assessments. (b) The Sellers shall have the sole right to represent the interests of the Company in any Tax audit or administrative or court proceeding relating to any Tax for any taxable period ending on or before the Closing Date, and to employ counsel of their choice at their expense. Notwithstanding the foregoing, the Sellers shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes with respect to any Separate Return which would adversely affect the liability for Taxes of Buyer or the Company for any period after the Closing Date to any extent (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of the loss or credit carry forwards) without the prior written consent of Buyer, which consent shall not be unreasonably withheld, and such consent shall not be necessary to the extent that the Sellers have indemnified Buyer against the effect of any such other party’s Affiliatessettlement. (c) may be liable under this Agreement. Seller, at its expense, Buyer shall control have the complete defense sole right to represent the interests of the Company in any Tax audit or administrative or court proceeding relating to Taxes with respect to taxable periods including (but not ending on) or beginning after the Closing Date and to employ counsel of its choice at its expense, provided that Buyer shall not be entitled to settle, either administratively or after the commencement of litigation, any claim regarding Taxes that would adversely affect the liability of Sellers for a taxable year or any Taxes for any period ending on or before the Closing Date, including responding to information Date or document requests and managing for any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentStraddle Period, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect required to the defense extent that Buyer has indemnified Sellers against the effects of any Tax audit or administrative or court proceeding relating such settlement. Where consent to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date settlement is in the 2009 calendar year, such defense shall be governed withheld by the second sentence Sellers pursuant to this section, the Sellers may continue or initiate any further proceedings at its own expense, provided that the liability of the Buyer, after giving effect to this Section 6.5(i); and if Agreement, shall not exceed the Closing Date is in liability that would have resulted from the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement or amended return.

Contest Provisions. Each of Buyer and Seller Parent or the Company shall promptly notify the other Stockholders’ Agent in writing upon receipt by Parent or any of its Affiliates or the Company or any of its Affiliates, of notice of any pending or threatened federal, state, local, or other foreign income or franchise Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of the Company or any Subsidiary for which such other party (or any such other party’s Affiliates) may the Former Securityholders would be liable under required to indemnify Parent pursuant to this Agreement. Seller, at its expense, Parent shall have the sole right to control the complete defense representation of the Company’s or any Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Tax periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of . The Stockholders’ Agent shall be entitled to participate at its expense in any such audit proceeding, subject to the control of Parent. Notwithstanding the foregoing, Parent shall not be entitled to settle, either administratively or proceeding would be reasonably likely after the commencement of litigation, any claim for Taxes relating to increase Tax periods ending on or before the Closing Date which may materially affect the Tax liability liabilities of Buyer the Company or any of its Affiliates Subsidiaries, or Parent or any of its Subsidiaries, for a taxable period or portion thereof beginning after which the Closing Date, (i) Buyer shall Former Securityholders would be entitled, at its expense, required to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding indemnify Parent without Buyer’s the prior written consentconsent of the Stockholders’ Agent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, The Stockholders’ Agent shall be entitled to participate at its expense in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to claim for Taxes for a taxable year or Tax period beginning on or before and ending after the Closing Date, if Date which may be the Closing Date is in the 2009 calendar year, such defense shall be governed subject of indemnification by the second sentence Former Securityholders, subject to the control of this Section 6.5(i); Parent, and, with the written consent of Parent, and if at the Closing Date is in sole expense of the 2010 calendar yearFormer Securityholders, may assume the entire defense of such defense shall be governed by the third sentence of this Section 6.5(i)Tax claim.

Contest Provisions. (a) Each of Buyer Purchaser, on the one hand, and Seller Seller, on the other hand (the “Tax Indemnified Person”), shall promptly notify the chief tax officer (or other appropriate person) of Seller or Purchaser, as the case may be (the “Tax Indemnifying Person”), in writing upon receipt by the Tax Indemnified Person of written notice of any pending or threatened audits audits, adjustments, claims, examinations, assessments or assessments with respect other proceedings (a “Tax Audit”) which are likely to affect the liability for Taxes for which such other party (or any of such other party, provided, however, that failure to file timely written notice to the other party shall not affect the other party’s Affiliatesindemnification obligations hereunder unless such failure materially adversely affects the other party’s rights to participate in the Tax Audit. (b) may be liable under this Agreement. SellerIf such Tax Audit relates to any taxable period, at its expenseor portion thereof, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateDate or for any Taxes for which RMO is liable in full under this Agreement, including responding RMO shall, at his expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to information or document requests and managing any such audit or proceedingtaxable period, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof thereof, beginning on or after the Closing DateDate or for any Taxes for which Purchaser is liable in full under this Agreement, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer Purchaser shall, at its expense, control the complete defense and settlement of any such Tax audit or administrative or court proceeding relating Audit. (c) If such Tax Audit relates to Taxes for which both RMO and Purchaser are liable under this Agreement, to the extent practicable, such Tax items will be distinguished and each party will control the defense and settlement of Taxes for which it is so liable. If such Tax Audit relates to a taxable year or period beginning after the Closing Date; providedperiod, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Datethereof, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateDate and any Tax item cannot be identified as being a liability of only one party or cannot be separated from a Tax item for which the other party is liable, if Purchaser may either elect, at its expense, to control the Closing Date is defense and settlement of the Tax Audit or require RMO, at his expense, to control the defense and settlement of the Tax Audit, provided that such party defends the items as reported on the relevant Tax Return and provided further that no such matter shall be settled without the written consent of both parties, not to be unreasonably withheld. (d) Any party whose liability for Taxes may be affected by a Tax Audit shall be entitled to participate at its expense in the 2009 calendar year, such defense and to employ counsel of its choice at its expense and shall have the right to consent to any settlement of such Tax Audit (not to be governed by unreasonably withheld) to the second sentence of extent such settlement would have an adverse effect for a period for which that party is not liable for Taxes, under this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Agreement or otherwise.

Contest Provisions. Each of Buyer and Seller (a) THK shall promptly notify the other Shareholders in writing upon receipt by THK, Litmus Surviving Company or any of their respective Affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) the Shareholders may be liable under this Agreement. Seller, at its expense, pursuant to Section 12.1 and Article X. (b) The Shareholders shall control have the complete defense of right to represent Litmus’ interests in any Tax audit or administrative or court Court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement the Shareholders shall have no right to represent Litmus’ interests in any Tax audit or compromise administrative or Court proceeding unless the Shareholders shall have first notified THK in writing of the Shareholders’ intention to do so and shall have agreed with THK in writing that, as between THK and the Shareholders, the Shareholders shall be liable for any such Taxes that result from any audit or proceeding. Litmus Surviving Company and its representatives shall have the right to fully participate at their expense in any audit or proceeding would be reasonably likely and to increase the consent to any settlement which affects a Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning Straddle Period ending after the Closing Date, (i) Buyer . THK shall be entitled, at its expense, have the sole right to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of defend Litmus with respect to any issue arising with respect to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof periods ending on or before the Closing DateDate to the extent THK shall have agreed in writing to forego any indemnification under this Agreement with respect to the issue. Notwithstanding the foregoing, (i) Seller, at its expense, the Shareholders shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of Litigation, any claim for Taxes which could adversely affect the liability for Taxes of THK, Litmus or any Affiliate thereof for any period after the Closing Date to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of THK, which consent shall not may be unreasonably withheld or delayed. With respect in the sole discretion of THK unless the Shareholders has indemnified THK in a manner acceptable to THK against the defense effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller (i) Purchaser shall promptly notify the other Seller in writing upon receipt by Purchaser, any of its Affiliates or, after the Closing Date, the Company or the Company Subsidiary of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any taxable period ending on or before the Closing Date or any Straddle Period or relating to a Tax for which Seller may be liable pursuant to this Agreement; provided that no failure to give such notice shall relieve Seller of any liability hereunder except to the extent, if any, that the rights of Seller with respect to such claim are actually prejudiced. (ii) Provided that Seller does not dispute its obligation to indemnify the Purchaser Indemnified Parties for the asserted liability, Seller shall have the sole right to represent the Company’s and the Company Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to a taxable period ending on or before the Closing Date and to employ counsel of Seller’s choice at Seller’s expense; provided, however, that Seller shall consult with the Company regarding any such audit or proceeding and inform the Company in a timely manner of any material events concerning any such audit or proceeding, and Purchaser and its representatives shall be permitted, at Purchaser’s expense, to be present at, and participate in, any such audit or proceeding. Subject to Section 5.8(c)(iii), neither Purchaser nor any Affiliate of Purchaser shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes relating to any taxable period ending on or before the Closing Date or to any Straddle Period or relating to a Tax for which such other party (or any such other party’s Affiliates) may Seller would be liable under pursuant to this AgreementAgreement without the prior written consent of Seller (which shall not be unreasonably withheld or delayed). SellerSeller shall have the right to settle or dispose of the portion of any audit or proceeding relating to any taxable period ending on or before the Closing Date; provided, at its expensehowever, that no settlement or other disposition of any claim for Tax which would adversely affect any Purchaser Indemnified Party in any taxable period in any manner or to any extent (including the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments and the reduction of loss or credit carryovers) shall control be agreed to without the complete defense Company’s prior written consent, which consent shall not be unreasonably withheld or delayed. (iii) In the event of any Tax audit or administrative or court proceeding relating to Taxes for a any taxable year or period ending on or before after the Closing Date, including responding a Straddle Period, with respect to information which the Purchaser Indemnified Parties may seek an indemnity from Seller under this Section 5.8 or document requests Article 8, Seller and managing Purchaser shall jointly represent the Company’s and the Company’s Subsidiary’s interests in such audit or proceeding, shall employ counsel of their mutual choice, and shall cooperate with the other and the other’s representatives in a prompt and timely manner in connection with any such audit or proceeding, and . Seller shall employ counsel have the right to settle or other advisors dispose of its choice at its expensethe portion of any such audit or proceeding relating to any Tax for which the Purchaser Indemnified Parties may seek an indemnity from Seller under this Section 5.8 or Article 8; provided, however, that if a no settlement or compromise other disposition of any such audit or proceeding claim for Tax which would be reasonably likely to increase the Tax liability of Buyer or adversely affect any of its Affiliates for a Purchaser Indemnified Party in any taxable period in any manner or portion thereof beginning after to any extent (including, but not limited to, the Closing Dateimposition of income tax deficiencies, (ithe reduction of asset basis or cost adjustments and the reduction of loss or credit carryovers) Buyer shall be entitled, at its expense, agreed to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyerthe Company’s prior written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control In the complete defense event Purchaser and Seller are unable to agree regarding any aspect of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise conduct of any such audit or proceeding would be reasonably likely to increase proceeding, the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, decision shall be entitled made by the counsel employed to participate in such proceedings, and (ii) Buyer may not settle or compromise pursue such audit or proceeding without Selleron the basis of counsel’s written consent, which consent shall not be unreasonably withheld or delayed. With respect good faith judgment regarding the course of action that would produce the overall lowest present value of Tax and litigation cost to the defense of Parties. Any expenses relating to any Tax such audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before shall be borne by Purchaser and ending after the Closing Date, if the Closing Date is Seller in the 2009 calendar year, same proportion as such defense shall be governed related Taxes are borne by the second sentence of Purchaser and Seller in accordance with this Section 6.5(i); Article 5 and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Article 8.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Companies of notice of any pending or threatened audits federal, state, local or foreign Tax assessments with respect to Taxes which may materially affect the tax liabilities of the Companies for which Seller would be required to indemnify Buyer pursuant to this Section 6.3, provided that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder except to the extent such other party (failure to comply directly and materially prejudices Seller's or the Companies' right to contest such assessments. Seller shall have the sole right to represent the Companies' interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverSeller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of the Buyer or the Companies for any period after the Closing Date to any material extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Buyer. Such consent shall not be unreasonably withheld, conditioned or delayed, and shall not be necessary to the extent that if a settlement or compromise Seller has indemnified the Buyer against the effects of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and settlement. (ii) Seller shall be entitled to participate at its expense in the defense of any claim for Taxes for a period ending after the Closing Date which may not settle or compromise such audit or proceeding without be the subject of indemnification by Seller pursuant to Section 9.2 and, with the written consent of Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, and at its sole expense, control may assume the complete entire defense of such Tax claim. Neither Buyer nor any of the Companies may agree to settle any Tax audit or administrative or court proceeding relating to Taxes claim for a taxable year or the portion of the period beginning after ending on the Closing Date; provided, however, that if a settlement or compromise Date which may be the subject of any such audit or proceeding would be reasonably likely to increase indemnification by Seller under Section 9.2 without the Tax liability prior written consent of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or the Company or any of its Subsidiaries of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments which may affect the tax liabilities of the Company or any of its Subsidiaries for which Seller would be required to indemnify Buyer pursuant to Section 5.1(a), but no failure to give such notice shall relieve Seller of any liability hereunder except to the extent, if any, that the rights of Seller with respect to Taxes for which such other party (claim are actually prejudiced. Seller shall have the right to represent the Company or any of its Subsidiaries' (and upon assuming such right, no other party’s AffiliatesPerson will have the right to represent the Company and its Subsidiaries) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in and manage any Income Tax audit or administrative or court proceeding relating to Taxes for a taxable year years or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Seller may not agree to settle any Income Tax claim which would materially adversely affect Buyer, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer Company or any of its Affiliates for a their Subsidiaries in any taxable period or portion thereof beginning ending after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without Buyer’s 's prior written consent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at its expense in such proceedingsthe defense of any claim for Income Taxes for a year or period ending after the Closing Date which may be the subject of indemnification by Seller pursuant to Section 5.1(a) and, with the written consent of Buyer, and (iiat Seller's expense, may assume the entire defense of such Income Tax claim. Neither Buyer nor the Company nor any of its Subsidiaries may agree to settle any Income Tax claim for the portion of the year or period ending on the Closing Date which may be the subject of indemnification by Seller under Section 5.1(a) Buyer may not settle or compromise such audit or proceeding without the prior written consent of Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or any of the Acquired Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable pursuant to this Section 7.1; provided, however, that the failure to give notice as provided in this Section 7.1(c)(i) shall not affect Buyer’s right to indemnification under this AgreementAgreement except to the extent Seller shall have been prejudiced by such failure. Seller, at its expense, Seller shall control promptly notify Buyer in writing in the complete defense of event that Seller receives such a notice described in the preceding sentence. (ii) Seller shall have the sole right to represent the Acquired Companies’ interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to this Section 7.1, and shall to employ counsel or other advisors of its choice at its expense; provided. In the case of a Straddle Period, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, have the right to participate represent the Acquired Companies’ interests in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Straddle Period. Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at its expense in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning attributable to the portion of such Straddle Period ending on or before and ending after the Closing Date, if including the Closing Date is and, with the written consent of Buyer, and at Seller’s sole expense, may assume the entire control of such audit or proceeding. None of Buyer, any of its Affiliates or any of the Acquired Companies may settle any Tax claim for any Taxes for which Seller may be liable pursuant to Section 7.1(a), without the prior written consent of Seller. None of Seller or its Affiliates may settle any Tax claim for any Taxes for which Buyer may be liable pursuant to Section 7.1(b) or which would otherwise materially adversely affect Buyer or an Acquired Company for any post-Closing tax period, in each case without the 2009 calendar year, such defense shall be governed by the second sentence prior written consent of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Buyer.

Contest Provisions. (a) Each of Buyer the Buyer, on the one hand, and Seller shall promptly notify the Seller, on the other hand (the "Recipient"), shall notify each of the other parties in writing upon within fifteen (15) calendar days of receipt by the Recipient of written notice of any pending or threatened audits audits, notice of deficiency, proposed adjustment, assessment, examination or assessments with respect to other administrative or court proceeding, suit, dispute or other claim (a "Tax Claim") which could affect the liability for Taxes for which such other party (or any of such other party’s Affiliates. If the Recipient fails to give such prompt notice to the other party it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Claim if and to the extent that such failure to give notice materially and adversely affects the other party's right to participate in the Tax Claim. (b) may be liable under this Agreement. Seller, at its expense, The Seller shall control have the complete defense of sole right to represent the Company's interests in any Tax audit or administrative or court proceeding Claim relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding so long as the Seller acknowledges its indemnification obligation to information or document requests the Buyer and managing any such audit or proceedingits Subsidiaries, and shall to employ counsel or other advisors of its choice at its expense; provided. In the case of a Straddle Period, however, that if a settlement the Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the portion of such Straddle Period deemed to end on or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after before the Closing Date. None of the Buyer, (i) Buyer shall be entitledthe Company, at its expense, to participate in such audit nor any of their Affiliates may settle or proceeding, and (ii) otherwise dispose of any Tax Claim for which any Seller may not settle have a liability under this Agreement, or compromise such audit or proceeding which may result in an increase in Seller's liability under this Agreement, without Buyer’s the prior written consentconsent of the Seller, which consent shall not may be unreasonably withheld or delayedin the discretion of the Seller, unless the Buyer fully indemnifies the Seller in writing with respect to such liability in a manner satisfactory to the Seller. Buyer shall, at its expense, control None of the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates may settle or otherwise dispose of any Tax Claim for a taxable period or portion thereof ending on or before which the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle have a liability under this Agreement, or compromise such audit or proceeding which may result in an increase in Buyer's liability under this Agreement, without Seller’s the prior written consentconsent of the Buyer, which consent shall not may be unreasonably withheld or delayed. With in the discretion of the Buyer, unless the Seller fully indemnify the Buyer in writing with respect to such liability in a manner satisfactory to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Buyer.

Contest Provisions. Each If, subsequent to the Closing, any of Buyer and Seller shall promptly notify the other in writing upon receipt Buyer, any Purchased Entity or any Subsidiary of a Purchased Entity receives notice of any pending audit, other administrative proceeding or threatened audits inquiry or assessments judicial proceeding involving Taxes (a “Tax Contest”) with respect to Taxes any Tax Return of any Purchased Entity, any Subsidiary of a Purchased Entity or with respect to the Purchased Assets or the Parent IP Assets for which a Pre-Closing Tax Period, then within five (5) calendar days after receipt of such other party (or any notice, Buyer shall notify Parent of such other party’s Affiliates) may be liable notice; provided that the failure to so notify Parent shall not relieve Parent of its indemnification obligations under this AgreementAgreement except to the extent that Parent has been damaged by such failure. Seller, at its expense, Parent shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateContest, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise any of the issues raised in such Tax Contest could have any such audit or proceeding would be reasonably likely to increase the Tax liability adverse impact on Taxes of Buyer Buyer, any Purchased Entity or any Subsidiary of its Affiliates a Purchased Entity or with respect to the Purchased Assets or the Parent IP Assets for a taxable period or portion thereof beginning after the Post-Closing DateTax Period, then Parent (i) shall afford Buyer shall be entitledthe opportunity to control jointly the conduct and resolution of the portion of such Tax Contest that could have such an impact, at its expense, (ii) keep Buyer informed of all developments on a timely basis with respect to participate in such audit or proceedingTax Contest to the extent that Buyer is not jointly controlling the conduct and resolution of such Tax Contest, and (iiiii) Seller may shall not settle or compromise resolve such audit or proceeding Tax Contests without Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expense, If Parent shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating Contest but elect in writing not to Taxes for do so, then Buyer shall have the right to control the conduct and resolution of such Tax Contest, provided that Buyer shall keep Parent informed of all developments on a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any timely basis and Buyer shall not resolve such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding Contest without SellerParent’s written consent, which consent shall not be unreasonably withheld withheld, conditioned, or delayed. With respect to Each party shall bear its own costs for participating in such Tax Contest. In the defense event of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before conflict between this Section 8.7 and ending after the Closing Dateprovisions of Section 7.5, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense 8.7 shall be governed by the third sentence of this Section 6.5(i)control.

Contest Provisions. Each (i) Promptly after receipt by Purchaser, the Company, Seller or any of Buyer and Seller shall promptly notify the other in writing upon receipt their Affiliates of written notice of the assertion or commencement of any pending claim, assessment, deficiency, audit, review, examination or threatened audits other proposed change or assessments with respect adjustment by any tax authority or any judicial or administrative proceeding (each, a “Tax Claim”) relating to Taxes for which such other party a taxable period (or any such other party’s Affiliatesportion thereof) may be liable under this Agreement. Seller, at its expense, shall control of the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period Company ending on or before the Closing Date, including responding the recipient will notify in writing Purchaser and/or Seller, as applicable. Such notice must contain factual information (to information or the extent known) describing the Tax Claim in reasonable detail and must include copies of the notice and any other document requests and managing received from any tax authority in respect of any such audit or proceedingTax Claim. Seller will have the right to control and direct the conduct, defense, prosecution, settlement and shall compromise of such Tax Claim and to employ counsel or other advisors of its his choice at its expensehis expense in connection therewith; provided, however, that if a settlement or compromise of Purchaser and its representatives will be permitted, at their expense, to be present at all proceedings and to review all correspondence and submissions related to any such audit Tax Claim. Notwithstanding the foregoing, Seller will not be entitled to settle, concede or proceeding compromise, either administratively or after the commencement of litigation, any such Tax Claim, which would be reasonably likely to increase adversely affect the Tax liability for Taxes of Buyer Purchaser or the Company for any of its Affiliates for a taxable period or portion thereof beginning after the Closing DateDate without the prior written consent of Purchaser (which consent will not be unreasonably withheld, (i) Buyer shall be entitled, at its expense, to participate in such audit delayed or proceeding, and conditioned). (ii) Seller may not settle or Purchaser will have the right to control and direct the conduct, defense, prosecution, settlement and compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit Claim against the Company pertaining to periods (or administrative or court proceeding relating to Taxes for a taxable year or period portions thereof) beginning after the Closing Date; provided, however, provided that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or neither Purchaser nor any of its Affiliates for a taxable period or portion thereof ending on or before (including the Closing Date, (iCompany) Seller, at its expense, shall will be entitled to participate in such proceedingssettle, and concede or compromise, either administratively or after the commencement of litigation, any Tax Claim which would adversely affect the liability for Taxes of Seller or his indemnification obligations to Purchaser under this Agreement without the prior written consent of Seller (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall will not be unreasonably withheld withheld, delayed or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence conditioned). (iii) The provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year8.6 shall apply, such defense shall be governed by the third sentence notwithstanding any contrary provision of this Section 6.5(i)ARTICLE 8.

Contest Provisions. Each of (a) Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or, after the Closing Date, any of the Acquired Companies of notice of any pending or threatened audits federal, state, local or assessments with respect to Taxes for which such other party foreign Tax audits, assessments, or proceedings (or any such other party’s Affiliatesa “Tax Action”) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a any taxable year or period ending on or before the Closing DateDate or any taxable period that includes but does not end on the Closing Date or relating to a Tax for which Seller may be liable pursuant to this Agreement; provided that the failure to provide such notice shall not release Seller from any of its obligations under this Article X, including responding except to information the extent Seller is actually materially prejudiced by such. (b) Seller shall have the sole right to represent interests of any of the Acquired Companies in any Tax Action relating to a taxable period ending on or document requests and managing any before the Closing Date (such audit or proceeding, a “Seller Proceeding”), and shall to employ counsel or other advisors of its Seller’s choice at its Seller’s expense; provided, however, that if (i) Seller shall reasonably consult with Buyer and keep Buyer reasonably informed regarding the progress and any potential compromise or settlement of each Seller Proceeding, (ii) Buyer and its Representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any Seller Proceeding, and (iii) Seller shall not settle or compromise any such Seller Proceeding without Buyer’s prior written consent (which shall not be unreasonably withheld, delayed or conditioned). Neither Buyer nor any Affiliate of Buyer shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes relating to any taxable period ending on or before the Closing Date or to any taxable period that includes but does not end on the Closing Date or relating to a Tax for which Seller would be liable pursuant to this Agreement without the prior written consent of Seller, which shall not be unreasonably withheld, delayed, or conditioned. (c) Notwithstanding anything to the contrary in this Agreement, in the case of any potential Loss for which Seller is obligated to indemnify Buyer or any Buyer Indemnified Party pursuant to this Agreement arising out of or resulting from (A) a failure of any Insurance Contract to comply with the statutes, Treasury Regulations and administrative guidance referred to in Section 5.21, (B) any failure of the computer programs, as operated by the Acquired Companies, in combination with the systems, processes and procedures (including manual workarounds) employed by the Acquired Companies, to maintain the United States federal income tax treatment of the Insurance Contracts in accordance with applicable provisions of the Code (as represented and warranted in Section 5.21(d)) or (C) any failure of the Acquired Companies to comply with the requirements referred to in Section 5.21(c), Buyer shall have the right to control the resolution of such potential Loss, including control of all corrective measures undertaken to remediate such failure (including obtaining remediation or other corrective relief from any Tax Authority or remediating any failure of the computer programs, as operated by the Acquired Companies, in combination with the systems, processes and procedures (including manual workarounds) employed by the Acquired Companies, to maintain the United States federal income tax treatment of the Insurance Contracts in accordance with applicable provisions of the Code). To the extent that such corrective measures include obtaining remediation or other relief from a Tax Authority or any other proceeding, Seller may participate in all discussions or proceedings with such Tax Authority or in such other proceeding at its own expense, and Buyer shall not implement any such corrective measures (including the settlement or compromise of any such audit or proceeding would be reasonably likely to increase proceeding) without the Tax liability prior written consent of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentSeller, which consent shall not be unreasonably withheld withheld, conditioned or delayed. . (d) Buyer shall, at its expense, control shall have the complete defense sole right to represent interests of any of the Acquired Companies in any Tax audit or administrative or court proceeding relating Action other than Seller Proceedings, and to Taxes for a taxable year or period beginning after the Closing Dateemploy counsel of Buyer’s choice at Buyer’s expense; provided, provided however, that if a settlement or compromise of with respect to any such audit or proceeding which would be reasonably likely expected to increase the Tax liability of result in an indemnification obligation by Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, under this Agreement: (i) SellerBuyer shall reasonably consult with Seller and keep Seller reasonably informed regarding the progress and any potential compromise or settlement of each such proceeding, (ii) Seller and its Representatives shall be permitted, at its Seller’s expense, shall to be entitled to present at, and participate in in, any such proceedingsproceeding, and (iiiii) Buyer may shall not settle or compromise any such audit or proceeding without Seller’s prior written consent, consent (which consent shall not be unreasonably withheld withheld, delayed or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(iconditioned).

Contest Provisions. Each of Buyer and Seller (i) Parent shall promptly notify the other Securityholder Representative in writing upon receipt by Parent, any of its Affiliates, the Company or the Subsidiary of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliates) the Key Securityholders may be liable under required to indemnify Parent Group Members pursuant to paragraph (a) of this Agreement. SellerSection 7.2, at its expense, provided that failure to comply with this provision shall control not affect Parent’s right to indemnification hereunder except to the complete defense of extent a Key Securityholder has been prejudiced by such failure. (ii) The Securityholder Representative shall have the sole right to represent the Company’s or the Subsidiary’s interests in and make all decisions in connection with any Tax audit or administrative or court proceeding relating to Taxes Tax liabilities for a which the Securityholders may be required to indemnify Parent Group Members pursuant to paragraph (a) of this Section 7.2 and which relate to taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its the Securityholder Representative’s choice at its the Securityholders’ expense; provided. Notwithstanding the foregoing, however, that if a settlement or compromise neither the Securityholder Representative nor any Securityholder nor any Affiliate of any such audit Securityholder shall be entitled to settle, either administratively or proceeding would after the commencement of litigation, any claim for Taxes which could reasonably be reasonably likely expected to increase adversely affect the Tax liability for Taxes of Buyer any Parent Group Member, the Company, the Subsidiary or any of its Affiliates Affiliate thereof for a taxable any period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without Buyer’s the prior written consentconsent of Parent, which consent shall may not be unreasonably withheld or delayed. Buyer shall, at its expense, control Parent shall have the complete defense of sole right to represent the Company’s or the Subsidiary’s interests in and make all decisions in connection with any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; providedStraddle Period Tax Returns, however, that if a settlement or compromise and to employ counsel of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, Parent’s choice at its expense. Notwithstanding the foregoing, neither Parent nor any Affiliate of Parent shall be entitled to participate in such proceedingssettle, and (ii) Buyer may not settle either administratively or compromise such audit after the commencement of litigation, any claim for Taxes which could reasonably be expected to adversely affect the liability for Taxes of any Securityholder Group Member, the Company or proceeding any Affiliate thereof for any period including the Closing Date without Seller’s the prior written consentconsent of the Securityholder Representative, which consent shall may not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of Buyer The Purchasers, on the one hand, and Seller the Sellers, on the other hand (the “Recipient”), shall promptly notify the Tax Representative of the other party in writing upon not later than the earlier of (i) 30 days after receipt by the Recipient or an Affiliate thereof of written notice (a “Proceeding Notice”) of any pending or threatened audits audits, adjustments, assessments or assessments with respect to other proceedings (a “Tax Audit”) that may affect the liability for Taxes for which of such other party or (or ii) 15 days prior to the deadline for responding to the Proceeding Notice. If the Recipient fails to give such notice to the Tax Representative of the other party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Audit to the extent such failure to give notice adversely affects the other party’s Affiliates) may be liable under right to participate in the Tax Audit or otherwise prejudices the other party. If, as a result of a “Determination” (as defined in Section 1313 of the Code), a party to this AgreementAgreement is entitled to indemnification for any Taxes arising in connection with a Tax Audit, the party responsible for such indemnification shall pay the amount of such Taxes due to the Tax Representative of the party entitled to indemnification no later than 15 days after the date the payment of such additional Taxes is made, provided the Tax Representative of the party responsible for such indemnification has received a written request for such payment setting forth in reasonable detail the amount of the requested payment. Seller, at its expense, shall control the complete defense of If such Tax Audit relates to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateDate (and including the 2009 calendar year if the Closing occurs in 2009), including responding the Sellers shall, at their expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning ending after the Closing DateDate (but excluding the 2009 calendar year if the Closing occurs in 2009), (i) Buyer shall be entitledthe Purchasers shall, at its their expense, control the defense and settlement of such Tax Audit. The Tax Representative of the party in control of the defense or settlement of any Tax Audit that relates to participate Taxes for which the other party may be liable under this Agreement shall keep the Tax Representative of the other party informed of the progress of such Tax Audit. The parties shall cooperate with each other and with their respective Affiliates in the negotiation and settlement of any Tax Audit described in this Section 10.3. The Sellers shall provide or cause to be provided to the Purchaser Tax Representative necessary authorizations, including powers of attorney, to control the defense or settlement of any Tax Audit that the Purchasers are entitled to control pursuant to this Section 10.3 and shall execute or cause to be executed any documents necessary for the Sellers to defend or settle any such audit Tax Audit. Likewise the Purchasers shall provide or proceedingcause to be provided to the Seller Tax Representative necessary authorizations, including powers of attorney, to control the defense or settlement of any Tax Audit that the Sellers are entitled to control pursuant to this Section 10.3 and (ii) Seller may shall execute or cause to be executed any documents necessary for the Sellers to defend or settle any such Tax Audit. For any Tax Audit where both Sellers and Purchasers are liable for Taxes under this Agreement, such Tax Audit shall not settle or compromise such audit or proceeding be finally settled without Buyer’s the prior written consentconsent of the non-controlling party, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or any such other party’s Affiliatesa) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before Following the Closing Date, including responding except as provided in (b) below, the Purchaser shall control the conduct, through counsel of its own choosing, of any audit, investigation, examination, claim, dispute, claim for refund, or administrative, judicial or other proceeding with or against a Governmental Authority involving any asserted Tax liability or refund with respect to information or document requests and managing any member of the Group (any such audit or proceedingaudit, and shall employ counsel or other advisors of its choice at its expense; providedinvestigation, howeverexamination, that if a settlement or compromise of any such audit claim, dispute claim for refund, or proceeding would be reasonably likely relating to increase the an asserted Tax liability with respect to any member of Buyer the Group being a “Tax Contest”). (b) Following the Closing Date, the Purchaser shall notify the Seller Representative in writing within ten (10) Business Days after receipt by the Purchaser or any of its Affiliates of written notice of the commencement of any Tax Contest that relates to Taxes for which the Purchaser is indemnified under Article IX. In the case of a Tax Contest for a taxable period or portion thereof beginning after Pre-Closing Tax Period of a member of the Closing DateGroup (but not a Straddle Period), if the Seller Representative notifies Purchaser in writing within ten (10) Business Days of receiving such notice from Purchaser that the Seller Representative elects to exercise its right to control the Tax Contest as set forth in this sentence (the “Seller Control Notice”), the Seller Representative shall have the right to control the conduct of such Tax Contest; provided that (i) Buyer the Purchaser shall be entitled, at its expense, have the right to participate in such audit or proceeding, Tax Contest at its own expense and (ii) the Seller may Representative shall not settle settle, compromise and/or concede any portion of such Tax Contest that is reasonably likely to affect the Tax liability of any member of the Group for any Post-Closing Tax Period (or compromise any Tax liability that is reasonably likely to be, directly or indirectly, borne by the Purchaser (including by reason of indemnification for such audit amounts under Article IX not being available as a result of the Cap or proceeding any other limitation)) without Buyer’s the prior written consentconsent of the Purchaser, which consent shall not be unreasonably withheld withheld, delayed or delayed. Buyer shallconditioned (it being understood and agreed for purposes of this clause (ii) that the settlement, at its expense, control the complete defense compromise or conceding of any Tax audit Contest in a manner that, and to the extent that it, reduces a carry forward attributable to a Seller Tax Deduction or administrative or court proceeding otherwise implements the provisions set forth in Section 9.5(c), in each case relating to Taxes an amount of carry forward or other Tax attribute not materially in excess of the amount of such carry forward or other Tax attribute that is reasonably expected to be applied under Section 9.5(c) for the purposes of computing indemnifiable Damages for Taxes, shall not be considered to affect the Tax liability of any member of the Group for any Post-Closing Tax Period or the Tax liability of Purchaser); provided, further, that (x) if the Seller Representative informs the Purchaser in writing that it chooses not to assume (or retain) control of the conduct of any such Tax Contest, (y) if the Seller Representative does not timely provide such Seller Control Notice, or if, at any time, the Seller Representative fails to defend diligently a Tax Contest that it elected to control pursuant to the foregoing provisions of this Section 10.2(b) (whether by failing to participate in any portion of, or attend any scheduled meetings in connection with, such Tax Contest or by failing to timely submit any materials in connection with such Tax Contest or otherwise) or (z) if more than half of the Tax liability resulting from the Tax Contest would not reasonably be expected to be recovered from the Indemnity Escrow Account (taking into account applicable deductibles and any other pending asserted claims), Purchaser shall have the right to assume control of such Tax Contest (at the Seller Representative’s reasonable expense) but shall not settle, compromise and/or concede any portion of such Tax Contest that is reasonably likely to affect the Tax liability of the Companies or their Subsidiaries for any taxable year (or portion thereof) ending on or before the Closing Date and/or liability of the Seller under Article IX without the consent of the Seller Representative, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the above provisions of this Section 10.2(b) and the proviso set forth in Section 10.2(c), the above provisions of this Section 10.2(b) and the proviso set forth in Section 10.2(c) shall not apply (A) after the date on which all amounts shall have been released from Indemnity Escrow Account in accordance with the terms of this Agreement and the Escrow Agreement, or, solely in the case of Tax Contests related to Taxes that are indemnifiable under Section 9.1(a)(v) (Specified Taxes) or Section 9.1(a)(vi) (Disclosed Taxes), until the date that is thirty (30) days following the end of the Earnout Period or (B) if the Purchaser notifies the Seller Representative in writing that the Purchaser is waiving its right to indemnification pursuant to Section 9.1(a) (Seller Indemnity) with respect to Taxes imposed as a result of the resolution of such Tax Contest. (c) The Purchaser shall have the exclusive right to control the conduct of any Tax Contest for any Straddle Period or any taxable period beginning after the Closing Date; provided, howeverthat, that if a settlement or compromise in the case of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates Contest for a taxable period or portion thereof ending on or before the Closing DateStraddle Period, (i) Seller, at its expense, the Seller Representative shall be entitled have the right to participate in such proceedings, Tax Contest at its own expense and (ii) Buyer may the Purchaser shall not settle or settle, compromise and/or concede any portion of such audit or proceeding Tax Contest that is reasonably likely to affect the liability of the Seller under Article IX without Seller’s the prior written consentconsent of the Seller Representative, which consent shall not be unreasonably withheld withheld, delayed or delayed. With respect to conditioned. (d) Neither the defense Seller Representative nor any of the Sellers or their respective Affiliates shall settle, compromise and/or concede any Tax audit audit, investigation, examination, claim, dispute claim for refund, or administrative or court proceeding relating to an asserted Tax liability with respect to Specified Taxes for a taxable year without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld, delayed or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)conditioned.

Contest Provisions. Each of Buyer and Seller (a) After the Closing, Parent shall promptly notify the other Securityholder Representative in writing upon receipt of any written notice of any pending a proposed assessment or threatened audits or assessments with respect to claim for Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax in an audit or administrative or court judicial proceeding relating of Parent and its Affiliates (including the Company and its Subsidiaries) which, if determined adversely to Taxes the taxpayer, would be grounds for indemnification under Article VIII; provided, however, that the failure to give such notice will not affect Parent’s right to indemnification under Article VIII except to the extent, if any, that, but for such failure, the Seller Indemnifying Parties could have avoided all or a taxable year portion of the Tax liability in question. (b) Subject to Section 9.2(c) and Section 9.7, in the case of an audit or period ending on administrative or before judicial proceeding that relates to a Pre‑Closing Taxable Period, the Closing DateSecurityholder Representative shall have the right at its expense to participate in and control the conduct of such audit or proceeding; provided that the Securityholder Representative shall not settle such audit or proceeding without the prior written consent of Parent (which shall not be unreasonably withheld, including responding to information delayed or document requests and managing conditioned). Parent may also participate in any such audit or proceeding and, if the Securityholder Representative does not assume the defense of any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; providedParent may defend the same in such manner as it may deem appropriate, however, that if a settlement or compromise of any including settling such audit or proceeding. (c) Subject to Section 9.7, in the case of an audit or administrative or judicial proceeding would that relates to a Straddle Period or where Parent and the Seller Indemnifying Parties may both be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Dateliable, (i) Buyer shall be entitled, at its expense, to both the Securityholder Representative and Parent may participate in such the audit or proceeding, proceeding and (ii) Seller the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the proposed adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods; provided that the controlling party shall not settle or compromise such audit or proceeding without Buyer’s the prior written consent, consent of the other party (which consent shall not be unreasonably withheld withheld, delayed or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(iconditioned).

Contest Provisions. Each of Buyer and Seller (a) Capital Growth shall promptly notify the other Shareholders in writing upon receipt by Capital Growth, the Surviving Corporation or any of their respective Affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) the Shareholders may be liable under this Agreement. Seller, at its expense, pursuant to Section 15.1 and Article XII. (b) The Shareholders shall control have the complete defense of right to represent Global Capacity’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its their choice at its their expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely the Shareholders shall have no right to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate represent Global Capacity’s interests in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating unless the Shareholders shall have first notified Capital Growth in writing of their intention to do so and shall have agreed with Capital Growth in writing that, as between Capital Growth and the Shareholders, the Shareholders shall be liable for any Taxes for a taxable year that result from such audit or period beginning after proceeding. The Surviving Corporation and its representatives shall have the Closing Date; provided, however, that if a settlement or compromise of right to fully participate at their expense in any such audit or proceeding would be reasonably likely and to increase the consent to any settlement which affects a Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and Straddle Period ending after the Closing Date. Notwithstanding the foregoing, if the Shareholders shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which adversely affects the liability for Taxes of Capital Growth, Global Capacity or any Affiliate thereof for any period after the Closing Date is to any extent (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Capital Growth, which consent may be withheld in the 2009 calendar year, such defense shall be governed by the second sentence sole discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Capital Growth.

Contest Provisions. (i) Each of Buyer the Buyer, on the one hand, and Seller the Seller, on the other hand (the "Recipient"), shall promptly notify the chief tax officer of the other party in writing upon within 15 days of receipt by the Recipient of written notice of any pending or threatened audits audits, notice of deficiency, proposed adjustment, assessment, examination or assessments with respect to other administrative or court proceeding, suit, dispute or other claim (a "Tax Claim") which could reasonably affect the liability for Taxes for which such other party (or any of such other party’s Affiliates. If the Recipient fails to give such prompt notice to the other party it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Claim if and to the extent that such failure to give notice materially and adversely affects the other party's right to participate in the Tax Claim. (ii) may be liable under this Agreement. Seller, The Seller shall have the sole right to represent the Company's interests in any Tax Claim relating to taxable periods ending on or before the Closing Date and to employ counsel of its choice at its expense. In the case of a Straddle Period, the Seller shall be entitled to participate at its expense in any Tax Claim relating in any part to Taxes attributable to the portion of such Straddle Period deemed to end on or before the Closing Date and, with the written consent of the Buyer, at the Seller's sole expense, may assume the control of such entire Tax Claim. None of the complete defense Buyer, any of its affiliates or the Company may settle or otherwise dispose of any Tax audit or administrative or court proceeding Claim (A) relating to Taxes for a taxable year or any period ending on or before the Closing Date, including responding without the prior written consent of the Seller, which consent may be withheld in the sole discretion of the Seller, unless the Buyer fully indemnifies the Seller in writing with respect to information such liability in a manner satisfactory to the Seller and (B) with respect to any period beginning on or document requests before the Closing Date and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning ending after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of the Seller, which consent shall not be unreasonably withheld or delayedwithheld. The Buyer shall, at its expense, control shall have the complete defense of sole right to represent the Company's interests in any Tax audit or administrative or court proceeding Claim relating to Taxes for a taxable year or period periods beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of (a) In the event (i) Sellers or their Affiliates or (ii) Buyer and Seller shall promptly notify the other in writing upon receipt of or its Affiliates receives notice of any pending or threatened audits Tax audit or assessments assessment or other dispute concerning Taxes with respect to which the other Party may incur liability under this Article IX, the Party in receipt of such notice promptly shall notify the other Party of such matter in writing, provided that failure of a Party to comply with this provision shall not affect any Party’s right to indemnification hereunder unless such failure materially adversely affects the ability of the Party that did not receive notice to challenge such Tax audits or assessments. (b) Sellers’ Representative shall have the sole right to represent the interests of the Company, JTF Holdco and Tylee Holdco in any Tax audit or administrative or court proceeding relating to any Tax for any taxable period ending on or before the Closing Date, and to employ counsel of its choice at Sellers’ expense. Notwithstanding the foregoing, Seller’s Representative shall not be entitled to settle, either administratively or after the commencement of litigation, any material claim regarding Taxes with respect to any Tax Return of the Company, JTF Holdco or Tylee Holdco that would adversely affect the liability for which such other party (Taxes of Buyer or any of the Company, JTF Holdco and Tylee Holdco for any period beginning on or after the Closing Date or create an indemnity obligation on the part of Buyer without the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed; provided, however, that such other party’s Affiliatesconsent shall not be necessary to the extent that Seller indemnifies Buyer against the effects of such settlement. (c) may be liable under this Agreement. SellerBuyer shall have the sole right to represent the interests of the Company, at its expense, shall control the complete defense of JTF Holdco or Tylee Holdco in any Tax audit or administrative or court proceeding relating to Taxes for a with respect to taxable year periods including (but not ending on) or period ending on or before beginning after the Closing Date, including responding Date and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement Buyer shall not be entitled to settle, either administratively or compromise after the commencement of litigation, any such audit or proceeding claim regarding Taxes that adversely would be reasonably likely to increase affect the Tax liability of Buyer Sellers (including any Taxes that may be payable by any indirect owners of Sellers) for any Tax or any create an indemnity obligation on the part of its Affiliates for a taxable period or portion thereof beginning after Sellers, without the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentprior consent of Sellers’ Representative, which consent shall not be unreasonably conditioned, withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect required to the defense extent that Buyer indemnifies Sellers against the effects of any Tax audit or administrative or court proceeding relating such settlement. Where consent to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date settlement is in the 2009 calendar year, such defense shall be governed withheld by the second sentence of Sellers’ Representative pursuant to this Section 6.5(i); and if the Closing Date is in the 2010 calendar year9.3, such defense shall be governed by the third sentence of this Section 6.5(i)Seller may continue or initiate any further proceedings at its own expense.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Sellers in writing upon receipt by Buyer, any of its Affiliates or, after the Second Closing Date, the Group Company of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect relating to Taxes for which any taxable period ending on or before the Second Closing Date or to any Straddle Period. Within ten (10) days after the Sellers’ receipt of such other party (or any such other partynotice, the Sellers may elect by written notice to Buyer to represent a Group Company’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in any Tax audit or administrative or court proceeding relating to Taxes a Tax liability for which Seller Group Members would be required to indemnify Buyer Group Members pursuant to Section 11.01(a) and that relates solely to a taxable year or period ending on or before the Second Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its Sellers’ choice at its Sellers’ expense; provided, however, that if a settlement or compromise of (1) Sellers shall have no right to represent any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate Group Company’s interests in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating unless Sellers shall have first notified Buyer in writing of Sellers’ intention to Taxes do so and of the identity of counsel, if any, chosen by Sellers in connection therewith, and (2) each Seller Group Member shall have agreed with Buyer that, as between Buyer and the Seller Group Members, the Seller Group Members shall be liable for a taxable year any Damages that result from such audit or proceeding; provided, further, that Buyer and its representatives shall be permitted to be present at, and participate in, any such audit or proceeding. Notwithstanding the foregoing, Sellers shall not enter into any settlement or otherwise compromise any claim, assessment or audit that adversely affects the Tax liability of Buyer, the Group Companies, or any Affiliate of the foregoing for any period beginning ending after the First Closing DateDate without the prior written consent of Buyer. (ii) Should Sellers not elect to contest the audit, claim or assessment under Section 11.01(c)(i) above, then Buyer shall have the sole right to represent the Company’s and each Subsidiary’s interests in any such Tax audit or administrative or court proceeding and to employ counsel of Buyer’s choice at Sellers’ expense; provided, however, that if a settlement or compromise of Sellers and their Representatives shall be permitted, at Sellers’ expense, to be present at, and participate in, any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, proceeding. (iiii) Seller, at its expense, Nothing herein shall be entitled construed to participate impose on Buyer any obligation to defend the Group Companies in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding. Subject to Section 11.01(c)(i) above, any proceeding relating to Taxes for a taxable year may be settled or period beginning on or before and ending after the Closing Date, if the Closing Date is compromised in the 2009 calendar yeardiscretion of Buyer, and any such defense settlement or compromise shall be governed by the second sentence of not affect any Buyer Group Member’s right to indemnification under this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Agreement.

Contest Provisions. Each of (i) Buyer and shall notify Seller shall promptly notify the other in writing upon receipt by Buyer, any of its Affiliates or, after the Closing Date, the Company or the Subsidiary, of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of the Company or the Subsidiary for which Seller would be required to indemnify Buyer Group Members pursuant to Section 8.2(a), provided that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the extent such other party (or failure materially impairs Seller’s ability to contest any such other partyTax liabilities. (ii) Seller shall have the sole right to represent the Company’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control and the complete defense of Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxes Tax liabilities for a which Seller would be required to indemnify Buyer Group Members pursuant to Section 8.2(a) and which relate to taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its Seller’s choice at its Seller’s expense; provided, however, that if a settlement Seller shall have no right to represent the Company’s or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate Subsidiary’s interests in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating unless Seller shall have first notified Buyer in writing of Seller’s intention to do so and shall have agreed with Buyer in writing that, as between Buyer and Seller, under the terms of this Agreement, Seller is liable for any Taxes for a taxable year that result from such audit or period beginning after the Closing Dateproceeding; provided, howeverfurther that Buyer and its representatives shall be permitted, that if a settlement or compromise of at Buyer’s expense, to be present at, and participate in, any such audit or proceeding. Nothing herein shall be construed to impose on Buyer or any Affiliate thereof any obligation to defend the Company or the Subsidiary in any Tax audit or administrative or court proceeding. Buyer shall have the sole right to defend the Company or the Subsidiary with respect to any issue arising with respect to any such Tax audit or administrative or court proceeding would be reasonably likely to increase the Tax liability extent Buyer shall have agreed in writing to forego any indemnification under this Agreement with respect to such issue. Notwithstanding the foregoing, neither Seller nor any Affiliate of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of any Buyer Group Member, the Company, the Subsidiary or any Affiliate thereof for any period after the Closing Date to any extent unless Seller has indemnified each Buyer Group Member against the effects of any such proceedingssettlement (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s Seller has obtained the prior written consentconsent of Buyer, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller (a) The Purchaser shall promptly notify the other Minto Delaware in writing upon receipt by the Purchaser, the Company or any of their respective Affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (Minto Delaware or any such other party’s Affiliates) Minto Holdings may be liable under this Agreement. Sellerpursuant to Section 9.1 and Article X. (b) Notwithstanding Section 10.2, at its expense, Minto Delaware shall control have the complete defense of right to represent the Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceedingInitial Closing, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely Minto Delaware shall have no right to increase represent the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate Company’s interests in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating unless Minto Delaware shall have first notified the Purchaser in writing of its intention to do so and shall have agreed with the Purchaser in writing that, as between the Purchaser, on the one hand, and Minto Delaware and Minto Holdings, on the other hand, Minto Delaware and Minto Holdings shall be liable for any Taxes for that result from such audit or proceeding attributable to taxable periods ending on before the Initial Closing. The Company and its representatives shall cooperate with Minto Delaware in such a taxable year or period beginning after proceeding and shall have the Closing Date; provided, however, that if a settlement or compromise of right to participate fully at their expense in any such audit or proceeding would be reasonably likely and to increase the consent to any settlement which affects a Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof Straddle Period ending on or before after the Closing DateInitial Closing. Notwithstanding the foregoing, (i) Seller, at its expense, Minto Delaware shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of litigation, any claim for Taxes which adversely affects the liability for Taxes of the Purchaser, the Company or any Affiliate thereof for any period after the Initial Closing to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer without the prior written consent of the Purchaser, provided however that Purchaser’s consent may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller The Company shall promptly notify the other Smitx & Xephew in writing upon receipt by it, any of its Affiliates or S&N DonJoy Mexico of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Smitx & Xephew may be liable under pursuant to paragraph (a) of this AgreementSection 8.1. Seller, at its expense, Smitx & Xephew shall control have the complete defense of sole right to represent the Company's and S&N DonJoy Mexico's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Smitx & Xephew may be liable pursuant to paragraph (a) of this Section 8.1, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement Smitx & Xephew shall provide timely notice to the Company of any significant developments with respect to any such audit or compromise of proceeding; and provided, further that the Company and its representatives shall be permitted, at the Company's expense, to be present at, and participate in, any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or (not including any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentrelating to income Taxes of Smitx & Xephew). In the case of a Straddle Period, which consent Smitx & Xephew shall not be unreasonably withheld or delayed. Buyer shall, entitled to participate at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such Straddle Period ending on and including the Closing Date and, with the written consent of the Company, and at Smitx & Xephew's sole expense, may assume the entire control of such audit or proceeding. Notwithstanding the foregoing, Smitx & Xephew shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for a taxable year Taxes which could adversely affect the liability for Taxes of the Company, S&N DonJoy Mexico or Investor for any period beginning after the Closing Date; providedDate to any extent without the prior written consent of the Company, howeverwhich consent the Company may not unreasonably withhold. Notwithstanding the foregoing, that if a settlement or compromise none of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or Investor, any of its Affiliates Affiliates, the Company or S&N DonJoy Mexico may settle any Tax claim for a taxable period or portion thereof ending on or before any Taxes for which Smitx & Xephew may be liable pursuant to paragraph (a) of this Section 8.1, without the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s prior written consentconsent of Smitx & Xephew, which consent shall may not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other Seller in writing upon receipt by Purchaser, any of its Affiliates, or any of the Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to paragraph (a) of this AgreementSection 5.14 (including, but not limited to, notice of any pending or threatened audits, examinations or assessments involving the Owner Participant or the Partnership which might affect the Tax liabilities for which Seller may be liable pursuant to paragraph (a) of this Section 5.14). Seller, at its expense, Seller shall control have the complete defense sole right to represent each of the Company's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing DateDate or otherwise relating to Taxes for which Seller may be liable pursuant to paragraph (a) of this Section 5.14 (including, including responding but not limited to, the right to information exercise any participation rights the Company may have (either contractually or document requests and managing under applicable Law) in any such Tax audit or proceedingadministrative or court proceeding involving the Owner Participant or the Partnership which might affect the Tax liabilities for which Seller may be liable pursuant to paragraph (a) of this Section 5.14), and shall to employ counsel or other advisors of its choice at its expense; provided. In the case of a Straddle Period, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate sole expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, Date (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of including any Tax audit or administrative or court proceeding involving the Owner Participant or Partnership, to the extent either Company is entitled to participate in such Tax audit or administrative or court proceeding (either contractually or and under applicable Law)) and, with the written consent of Purchaser, and at Seller's sole expense, may assume the entire control of such audit or proceeding (or, in the case of any audit or proceeding involving the Owner Participant or Partnership, the entire participation by either Company in such audit or proceeding). None of Purchaser, any of its Affiliates, or any of the Companies may settle any Tax claim (or consent to or otherwise exercise the rights of either Company (contractually or under applicable Law) with respect to the settlement of any Tax claim by the Owner Participant or the Partnership) relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall which Seller may be governed by the second sentence liable pursuant to paragraph (a) of this Section 6.5(i); and if 5.14 without the Closing Date is prior written consent of Seller, which consent may be withheld in the 2010 calendar year, such defense shall be governed by the third sentence sole discretion of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer and Seller (a) Acquiror shall promptly notify the other Sellers in writing upon receipt by Acquiror, any of its Affiliates or, after the Closing Date, the Companies of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect relating to Taxes any taxable period ending on or before the Closing Date or any Straddle Period or relating to a Tax for which such other party (or any such other party’s Affiliates) Sellers may be liable under pursuant to this Agreement. SellerFollowing the Closing Date, at its expenseSellers shall promptly notify Acquiror in writing upon receipt by Sellers of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any taxable period of the Companies ending on or before the Closing Date or any Straddle Period, that will affect any taxable period of the Companies ending after the Closing Date. (b) Sellers shall control have the complete defense of sole right to represent each Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding Date and shall have a reasonable opportunity to information or document requests and managing any participate in the defense of such audit or proceedingproceeding relating to any Straddle Period or relating to a Tax for which Sellers otherwise may be liable pursuant to this Agreement, and shall to employ counsel or other advisors of its Sellers’ choice at its Sellers’ expense; provided, however, that if a settlement or compromise of Acquiror and its Representatives shall be permitted, at Acquiror’s expense, to be present at, and participate in, any such audit or proceeding would proceeding. Neither Acquiror nor any Affiliate of Acquiror shall be reasonably likely entitled to increase settle, either administratively or after the Tax commencement of litigation, any claim for Taxes which could adversely affect the liability of Buyer or for Taxes relating to any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing DateDate or to any Straddle Period or relating to a Tax for which Sellers would be liable pursuant to this Agreement without the prior written consent of Sellers, (i) Seller, at its expense, shall be entitled not to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld withheld, conditioned, or delayed. With respect Sellers may discharge at any time their indemnification obligation under Section 7.01 by paying Acquiror the amount payable pursuant to Section 7.01, calculated on the defense date of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)payment.

Contest Provisions. Each CMS Energy or one of Buyer and Seller its subsidiaries shall promptly notify the other Stockholders in writing upon receipt by any Tax Indemnitee of notice of any pending or threatened audits federal, state, local or assessments with respect to Taxes foreign Tax audit or assessment which may materially affect the Tax liabilities of Waltxx xx its Subsidiaries for which the Stockholders would be required to indemnify the Tax Indemnitees pursuant to Section 10.1 or this Section 7.2, provided, that failure to comply with this provision shall not affect the Tax Indemnitees' right to indemnification hereunder except to the extent that such other party (or any omission results in a failure of actual knowledge of the Stockholders and the Stockholders are damaged as a result of such other party’s Affiliates) may be liable under this Agreementfailure of actual knowledge. Seller, at The Stockholders shall have the sole right to represent the interests of Waltxx xxx its expense, shall control the complete defense of Subsidiaries in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Unaudited Balance Sheet Date, including responding and to information or document requests employ counsel of their choice at their expense, provided that the Tax Indemnitees (and managing their tax counsel) may, at their own expense, be present at and participate in any such audit or proceeding. Notwithstanding the foregoing, and the Stockholders shall employ counsel not be entitled to settle, either administratively or other advisors after the commencement of its choice at its expense; providedlitigation, howeverany claim that would constitute a Timing Adjustment or any claim for Taxes which would adversely affect the liability for Taxes of the Tax Indemnitees for any period after the Unaudited Balance Sheet Date to any extent (including, that if a settlement but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or compromise cost adjustments, the lengthening of any such audit amortization or proceeding would be reasonably likely to increase depreciation periods, the denial of amortization, depreciation or depletion deductions, or the reduction of loss or credit carryforwards) without the prior written consent of the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which Indemnitees. Such consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control necessary to the complete defense of any extent that the Stockholders have indemnified the Tax audit or administrative or court proceeding relating Indemnitees in a manner acceptable to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise Tax Indemnitees against the effects of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of (a) In the event (i) the Seller or its Affiliates or (ii) the Buyer and Seller shall promptly notify the other in writing upon receipt of or its Affiliates receive notice of any pending or threatened Tax audits or assessments or other disputes concerning Taxes with respect to Taxes for which such the other party may incur liability under this Article VIII, the party in receipt of such notice shall promptly notify the other parties of such matter in writing, provided that failure to comply with this provision shall not affect a party’s right to indemnification hereunder unless and to the extent such failure materially adversely affects the party’s ability to challenge such Tax audits or assessments. (b) The Seller shall represent the interests of the Company in any Tax audit or administrative or court proceeding to the extent such audit or proceeding relates to any Tax for any taxable period ending on or before the Closing Date, and to employ counsel of the Seller’s choice at the Seller’s expense, if the Seller notifies the Buyer of its decision to take such actions within thirty (30) calendar days of the date on which the Seller receives notice of any such audit or proceeding from the Buyer (with respect to audits or proceedings as to which the Buyer first received notice from a Governmental Authority or other party’s AffiliatesPerson) may be liable under this Agreement. Selleror the date on which the Seller delivered to the Buyer notice of any such audit or proceeding (with respect to audits or proceedings as to which the Seller first received notice from a Governmental Authority or other Person), provided however, that the Buyer may, at its own expense, attend, but not participate in or control, all conferences, meetings and proceedings relating to such audits or proceedings. The Seller shall control inform the complete defense Buyer of all developments and events relating to such audits or proceedings. Notwithstanding the foregoing, if the Seller elects to so represent the interests of the Company, the Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes with respect to any Return of the Company which would adversely affect the liability for Taxes of the Buyer or the Company for any period after the Closing Date to any extent (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of the loss or credit carry forwards) without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. (c) The Buyer shall have the sole right to represent the interests of the Company in any Tax audit or administrative or court proceeding relating to Taxes with respect to taxable periods including (but not ending on) or beginning after the Closing Date and to employ counsel of the Buyer’s choice at the Buyer’s expense, provided that the Buyer shall not be entitled to settle, either administratively or after the commencement of litigation, any claim regarding Taxes that would adversely affect the liability of the Seller for a taxable year or any Taxes for any period ending on or before the Closing DateDate or for any Straddle Period, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors without the prior consent of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentSeller, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, delayed and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect required to the defense extent that the Buyer has fully indemnified the Seller against the effects of any Tax audit or administrative or court proceeding relating such settlement. Where consent to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date settlement is in the 2009 calendar year, such defense shall be governed withheld by the second sentence Seller pursuant to this section, the Seller may continue or initiate any further proceedings at its own expense, the Buyer shall not be obligated to incur any further expenses in such matter and the liability of the Buyer, after giving effect to this Section 6.5(i); and if Agreement, shall not exceed the Closing Date is in liability that would have resulted from the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement or amended return.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer or any of its Affiliates (including the Transferred Subsidiaries) of notice of any pending or threatened Tax audits or assessments with respect to Taxes that may affect the Tax Liabilities for which Seller would be required to indemnify Buyer pursuant to Section 4.5(a) or (b), provided that any failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder to the extent such other party (failure does not prejudice Seller’s ability to defend such audit or any assessment or increases the amount of such other partyTaxes. Seller shall have the sole right to represent the relevant Transferred Subsidiary’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of interests in any Tax audit or administrative or court proceeding (“Tax Proceeding”) relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingPeriods, and shall to employ counsel or other advisors of its choice at its expense; provided, however, except that if a settlement or compromise of any Buyer shall have the right to participate at its own expense in such audit or proceeding proceedings to the extent that such proceedings would be reasonably likely affect the amount of Tax for which it is required to increase indemnify Seller under this Section 4.5. Buyer shall have the sole right to represent the relevant Transferred Subsidiary’s interest in any Tax liability of Buyer Proceeding relating to any Straddle Period or any Post-Closing Period, except that Seller shall have the right to participate at its own expense in such proceedings to the extent that such proceedings would reasonably likely affect the amount of its Affiliates Tax for a taxable period or portion thereof beginning which it is required to indemnify Buyer under this Section 4.5. Notwithstanding the foregoing, after the Closing Date, (i) Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes relating to a Pre-Closing Period that may either (x) materially affect the Buyer’s liability to indemnify Seller under this Section 4.5 or (y) increase the liability for Taxes of Buyer or any Transferred Subsidiary in any Post-Closing Tax Period, without the prior written consent of Buyer, which consent shall not be entitled, at its expense, to participate in such audit or proceeding, and unreasonably withheld; (ii) Buyer shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes relating to a Straddle Period or Post-Closing Period that may either (x) materially affect the Seller’s liability to indemnify Buyer under this Section 4.5 or (y) increase the liability for Taxes of Seller may or any of its Affiliates (other than the Transferred Subsidiaries) in any Tax Period, without the prior written consent of Seller, which consent shall not settle be unreasonably withheld; and (iii) in either case (i) or compromise (ii), such audit consent shall not be necessary to the extent that the party entering such settlement has agreed in writing to indemnify the other party against the effects of any such settlement. Notwithstanding the foregoing provisions of this Section 4.5(i), (A) any Tax Proceedings relating to Transfer Taxes that are the subject matter of Section 4.5(a) shall be conducted by the party having the responsibility to file the Tax Return for such Transfer Taxes under Section 4.5(a), with the other party having the right to participate at its own expense in such proceedings, and with neither party entitled to settle, either administratively or proceeding after the commencement of litigation, any claim for such Transfer Taxes without Buyerthe other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any and (B) Tax audit or administrative or court proceeding relating Proceedings related to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability Return with respect to Cytec Surface Specialties (Shanghai) Co. Ltd. described in the penultimate sentence of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (iSection 4.5(h) Seller, at its expense, shall be entitled subject to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and 4.5(i) as if the it is related to a Pre-Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Period.

Contest Provisions. (a) Each of Buyer Parent, on the one hand, and Seller Shareholders, on the other hand (the “Tax Indemnified Person”), shall promptly notify the chief tax officer (or other appropriate person) of Shareholders or Parent, as the case may be (the “Tax Indemnifying Person”), in writing upon receipt by the Tax Indemnified Person of written notice of any pending or threatened audits audits, adjustments, claims, examinations, assessments or assessments with respect other proceedings (a “Tax Audit”) which are likely to affect the liability for Taxes for which such other party (or any of such other party, provided, however, that failure to file timely written notice to the other party shall not affect the other party’s Affiliatesindemnification obligations hereunder unless such failure materially adversely affects the other party’s rights to participate in the Tax Audit. (b) may be liable under this Agreement. SellerIf such Tax Audit relates to any taxable period, at its expenseor portion thereof, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateDate or for any Taxes for which RMO is liable in full under this Agreement, including responding RMO shall, at his expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to information or document requests and managing any such audit or proceedingtaxable period, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof thereof, beginning on or after the Closing DateDate or for any Taxes for which Parent is liable in full under this Agreement, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer Parent shall, at its expense, control the complete defense and settlement of any such Tax audit or administrative or court proceeding relating Audit. (c) If such Tax Audit relates to Taxes for which both RMO and Parent are liable under this Agreement, to the extent practicable, such Tax items will be distinguished and each party will control the defense and settlement of Taxes for which it is so liable. If such Tax Audit relates to a taxable year or period beginning after the Closing Date; providedperiod, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Datethereof, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateDate and any Tax item cannot be identified as being a liability of only one party or cannot be separated from a Tax item for which the other party is liable, if Parent may either elect, at its expense, to control the Closing Date is defense and settlement of the Tax Audit or require RMO, at his expense, to control the defense and settlement of the Tax Audit, provided that such party defends the items as reported on the relevant Tax Return and provided further that no such matter shall be settled without the written consent of both parties, not to be unreasonably withheld. (d) Any party whose liability for Taxes may be affected by a Tax Audit shall be entitled to participate at its expense in the 2009 calendar year, such defense and to employ counsel of its choice at its expense and shall have the right to consent to any settlement of such Tax Audit (not to be governed by unreasonably withheld) to the second sentence of extent such settlement would have an adverse effect for a period for which that party is not liable for Taxes, under this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Agreement or otherwise.

Contest Provisions. Each of Buyer and Seller Purchaser shall promptly notify the other ------------------ Seller in writing upon receipt by Purchaser, any of its Affiliates or the Company of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of the Company for which such other party (or Seller would be required to indemnify Purchaser pursuant to Section 5.3(e)(ii)(A). Seller shall have the sole right to represent the Company's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverSeller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of Purchaser, the Company or any of their Affiliates for any period after the Closing Date to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of Purchaser. Such consent shall not be unreasonably withheld, and shall not be necessary to the extent that if a settlement or compromise Seller has indemnified Purchaser against the effects of any such audit or proceeding would settlement. Seller shall be reasonably likely entitled to increase participate at its expense in the Tax liability defense of Buyer or any of its Affiliates claim for Taxes for a taxable year or period or portion thereof beginning ending after the Closing Date, (iDate which may be the subject of indemnification by Seller pursuant to Section 5.3(e)(ii)(A) Buyer shall be entitledand, at its expensesole expense and with the written consent of Purchaser, may assume the entire defense of such tax claim. Neither Purchaser nor the Company may agree to participate in such audit settle any tax claim for the portion of the year or proceeding, and (iiperiod ending on the Closing Date which may be the subject of indemnification by Seller under Section 5.3(e)(ii)(A) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of Seller, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of Buyer and (a) In the event (i) any Seller shall promptly notify the other in writing upon receipt of or their Affiliates or (ii) Alon or its Affiliates receive notice of any pending or threatened Tax audits or assessments or other disputes concerning Taxes with respect to Taxes for which such the other party (or any may incur liability under this Article VIII, the party in receipt of such notice shall promptly notify the other party of such matter in writing, provided that failure to comply with this provision shall not affect a party’s Affiliatesright to indemnification hereunder unless such failure materially adversely affects the party’s ability to challenge such Tax audits or assessments. (b) may The Sellers shall have the sole right to represent the interests of the Acquired Companies in any Tax audit or administrative or court proceeding relating to any Tax for any taxable period ending on or before the Closing Date, and to employ counsel of their choice at their expense. Notwithstanding the foregoing, the Sellers shall not be liable under this Agreement. Sellerentitled to settle, at its expenseeither administratively or after the commencement of litigation, any claim for Taxes with respect to any Tax Return of any of the Acquired Companies which would adversely affect the liability for Taxes of Alon or the Acquired Companies for any period after the Closing Date to any extent (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of the loss or credit carry forwards) without the prior written consent of Alon, which consent shall control not be unreasonably withheld or delayed. (c) Alon shall have the complete defense sole right to represent the interests of the Acquired Companies in any Tax audit or administrative or court proceeding relating to Taxes with respect to taxable periods including (but not ending on) or beginning after the Closing Date and to employ counsel of its choice at its expense, provided that Alon shall not be entitled to settle, either administratively or after the commencement of litigation, any claim regarding Taxes that would adversely affect the liability of the Sellers for a taxable year or any Taxes for any period ending on or before the Closing DateDate or for any Straddle Period, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors without the prior consent of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentSellers’ Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, delayed and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect required to the defense extent that Alon has indemnified the Sellers against the effects of any Tax audit or administrative or court proceeding relating such settlement. Where consent to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date settlement is in the 2009 calendar year, such defense shall be governed withheld by the second sentence Sellers’ Representative pursuant to this section, the Sellers may continue or initiate any further proceedings at their own expense, Alon shall not be obligated to incur any further expenses in such matter and the liability of Alon, after giving effect to this Section 6.5(i); and if Agreement, shall not exceed the Closing Date is in liability that would have resulted from the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement or amended return.

Contest Provisions. Each of Buyer and Seller (a) THK shall promptly notify the other Shareholders in writing upon receipt by THK, iLead Surviving Company, THK LLC or any of their respective Affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) the Shareholders may be liable under this Agreement. Seller, at its expense, pursuant to Section 12.1 and Article X. (b) The Shareholders shall control have the complete defense of right to represent iLead’s interests in any Tax audit or administrative or court Court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement the Shareholders shall have no right to represent iLead’s interests in any Tax audit or compromise administrative or Court proceeding unless the Shareholders shall have first notified THK in writing of the Shareholders’ intention to do so and shall have agreed with THK in writing that, as between THK and the Shareholders, the Shareholders shall be liable for any such Taxes that result from any audit or proceeding. iLead Surviving Company, THK LLC and its representatives shall have the right to fully participate at their expense in any audit or proceeding would be reasonably likely and to increase the consent to any settlement which affects a Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning Straddle Period ending after the Closing Date, (i) Buyer . THK shall be entitled, at its expense, have the sole right to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of defend iLead with respect to any issue arising with respect to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof periods ending on or before the Closing DateDate to the extent THK shall have agreed in writing to forego any indemnification under this Agreement with respect to the issue. Notwithstanding the foregoing, (i) Seller, at its expense, the Shareholders shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of Litigation, any claim for Taxes which could adversely affect the liability for Taxes of THK, iLead or any Affiliate thereof for any period after the Closing Date to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of THK, which consent shall not may be unreasonably withheld or delayed. With respect in the sole discretion of THK unless the Shareholders has indemnified THK in a manner acceptable to THK against the defense effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing ------------------ upon receipt after the Closing Date by any Buyer Group Member of notice of any pending domestic or foreign federal, state, local, county, municipal or other Tax audit, examination or pending or threatened audits or assessments with respect to Taxes assessment which may affect any Tax liability for which Seller is liable pursuant to Section 11.1(a), provided --------------- that failure to comply with this provision shall not affect Buyer's right to indemnification hereunder except to the extent such other party (or failure materially prejudices Seller's ability to contest any such other party’s Affiliates) may be liable under this AgreementTax liabilities. SellerSeller shall have the sole right, at its option and at its own expense, shall control to represent the complete defense interests of either Company or any Subsidiary in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the any Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingTax Period, and shall to employ counsel or other advisors of its choice at its expense; provided, however, --------- -------- that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to may participate in such audit or proceedingproceeding with counsel of its choice and at its expense. With reasonable prior notice to Buyer given not later than 12 months following the Closing Date, Seller shall have the sole right to prepare and file, or cause to be prepared and filed, at its option and at its own expense, voluntary disclosures to state, local, county or municipal tax authorities with respect to the Tax liability of either Company or any of the Subsidiaries for any Pre-Closing Tax Period. Subject to the following sentence, Seller shall have the sole right to settle, either administratively or after the commencement of litigation, any audit or proceeding relating to Taxes of either Company or any Subsidiary for any Pre-Closing Tax Period, subject, in the case of any refund, litigation, settlement, audit or proceeding that increases the Tax liability of a Buyer Group Member in a Post-Closing Tax Period by accelerating any Tax benefit to a Pre-Closing Tax Period or by deferring income to a Post-Closing Tax Period, to principles reciprocal to those provided in Section 11.1(d). Notwithstanding the preceding sentence, the settlement of --------------- any issue that increases the Tax liability of a Buyer Group Member in a Post- Closing Tax Period other than by accelerating any Tax benefit to a Pre-Closing Tax Period or by deferring income to a Post-Closing Tax Period (iii.e., an issue that increases Tax liability both in a Pre-Closing Tax Period and in a Post- Closing Tax Period) shall require the consent of the Buyer, which shall not be unreasonably withheld. To the extent that Seller may elects not settle or compromise to defend such audit or proceeding without Buyer’s written consentrelating to a Pre-Closing Tax Period, which consent shall not be unreasonably withheld or delayed. Buyer shallmay retain counsel, at its expensethe expense of Seller, and control the complete defense of such audit or proceeding. In the case of any Straddle Period, Seller shall be entitled to participate at its expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of Buyer, that if a settlement or compromise and at Seller's sole expense, may assume the entire control of any such audit or proceeding would proceeding. No Buyer Group Member may agree to settle any Tax claim which may be reasonably likely to increase the Tax liability subject of indemnification by Seller or any under Section 11.1 without the prior written consent of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall ------------ not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Dover in writing upon receipt by Buyer or any of its Affiliates of notice in writing of any pending or threatened federal, state, local or foreign Tax audits or assessments with respect relating to Taxes any taxable period ending on or before the Closing Date or any Straddle Period or relating to a Tax for which such other party (or any such other party’s Affiliates) Dover may be liable under pursuant to this Agreement. Seller, at its expense, . (ii) Dover shall control have the complete defense of sole right to represent each Acquired Company’s interests in any Tax audit or administrative or court proceeding Proceeding with any Governmental Entity relating to Taxes for (“Tax Proceeding”) (x) relating to a taxable year or period ending on or before the Closing Date, including responding (y) relating to information the VAT Issue, or document requests and managing (z) relating to Taxes payable in connection with a Tax Return filed by any such audit Consolidated Tax Group (other than one consisting solely of one or proceedingmore Acquired Companies), and shall to employ counsel or other advisors of its Dover’s choice at its Dover’s expense; provided, however, that if a settlement that, except to the extent related to the VAT Issue or compromise any Taxes described in clause (z), (A) Dover shall inform Buyer of the status of any such audit Tax Proceeding, (B) Dover shall provide Buyer (at Buyer’s cost and expense) with complete and accurate copies of any pleadings, correspondence and other documents (in each case, as Buyer may reasonably request in writing) in respect of any such Tax Proceeding, (C) Buyer and its representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any such Tax Proceeding, (D) Dover shall consult with Buyer prior to any settlement of any such Tax Proceeding and (E) Dover shall, prior to any proposed settlement by Dover of any such Tax Proceeding that could reasonably be expected to materially adversely affect Buyer or proceeding the Acquired Companies in any taxable period (including portions of any Straddle Period) ending after the Closing Date or give rise to a Tax payment upon such settlement for which Buyer may be liable pursuant to Section 5.1(a)(ii), (I) notify Buyer in writing of the terms of such proposed settlement, stating that Dover is prepared to, and has received reasonable assurances from the applicable Governmental Entity that it is prepared to, settle the Tax Proceeding on the basis of such terms and (II) provide to Buyer such other information in Dover’s possession as may be reasonably necessary to allow Buyer to evaluate the consequences of such proposed settlement. Within thirty (30) days after receiving a notice described in clause (E) of the preceding sentence, Buyer shall notify Dover in writing either (1) that Buyer agrees to such settlement, in which case Dover shall be entitled to settle such Tax Proceeding in accordance with such terms, or (2) that Buyer does not agree to such settlement, and agrees in writing that Buyer (i) shall represent the relevant Acquired Company’s interests in any such Tax Proceeding, (ii) shall waive any right to indemnification relating to such Tax Proceeding in excess of the indemnification that would be reasonably likely payable upon settlement of such Tax Proceeding on such terms, and (iii) shall indemnify and hold harmless the Dover Indemnified Parties from and against all Losses attributable to increase such Tax Proceeding (other than Dover’s indemnification obligation based on the proposed settlement), in which case Buyer shall have the sole right to represent the Acquired Company’s interests in such Tax liability Proceeding (provided that Dover and its representatives shall be permitted, at Dover’s expense, to be present at, and participate in, any such Tax Proceeding); provided that any failure by Buyer to timely provide such notice shall be deemed to be notice as described in clause (1). (iii) Buyer shall have the sole right to represent any Acquired Company’s interests in any other Tax Proceeding (including, for the avoidance of Buyer doubt, any such Tax Proceeding relating to a Straddle Period other than a Tax Proceeding relating to the VAT Issue or any Tax described in clause (z) of its Affiliates the first sentence of Section 5.1(c)(ii)); provided, however, that, with respect to any such Tax Proceeding relating to a Tax for a which Dover may be liable pursuant to this Agreement, Buyer shall consult with Dover prior to any settlement of any such Tax Proceeding. In addition, except in the case of the VAT Issue or Taxes described in clause (z) of the first sentence of Section 5.1(c)(ii), Buyer shall have the sole right to represent any Acquired Company’s interests in any Tax Proceeding relating to any taxable period or portion thereof beginning Tax with respect to which Dover otherwise had the sole right to undertake such representation to the extent that Dover failed, after reasonable notice from Buyer, to undertake such representation in a timely manner and Buyer provides notice, and agrees in writing, in the manner set forth in clause (2) of the second sentence of Section 5.1(c)(ii) (with the amount payable upon failure to pursue such representation being treated as the settlement amount). With respect to any Tax Proceeding that Buyer controls in accordance with this Section 5.1(c)(iii) other than a Tax Proceeding relating to a Tax Return of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to the limitations contained in Section 1504(b) of the Code) that, at any time after the Closing Date, (i) Buyer shall be entitledincludes any Acquired Company and any entity that is not an Acquired Company or a successor to an Acquired Company, or any other group of entities filing Tax Returns on a combined, consolidated or unitary basis that, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning time after the Closing Date; provided, howeverincludes any Acquired Company and any entity that is not an Acquired Company or a successor to an Acquired Company, that if a Buyer shall, prior to any proposed settlement or compromise by Buyer of any such audit or proceeding would Tax Proceeding that could reasonably be reasonably likely expected to increase materially adversely affect the Tax liability of Seller or Dover Indemnified Parties in any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date (or the portion of any Straddle Period ending on the Closing Date) or give rise to a Tax upon such settlement for which Dover may be liable pursuant to this Agreement, (iI) Sellernotify Dover in writing of the terms of such proposed settlement, at its expensestating that Buyer is prepared to, and has received reasonable assurances from the applicable Governmental Entity that it is prepared to, settle the Tax Proceeding on the basis of such terms and (II) provide to Dover such other information in Buyer’s possession as may be reasonably necessary to allow Dover to evaluate the consequences of such proposed settlement. Within thirty (30) days after receiving a notice described in clause (I) of the preceding sentence, Dover shall notify Buyer in writing either (1) that Dover agrees to such settlement, in which case Buyer shall be entitled to participate settle such Tax Proceeding in accordance with such proceedingsterms, or (2) that Dover does not agree to such settlement, and agrees in writing that Dover (i) shall represent the relevant Acquired Company’s interests in any such Tax Proceeding, (ii) shall waive any right to indemnification relating to such Tax Proceeding in excess of the indemnification that would be payable upon settlement of such Tax Proceeding on such terms, and (iiiii) shall indemnify and hold harmless the Buyer may not settle or compromise Indemnified Parties from and against all Losses attributable to such audit or proceeding without SellerTax Proceeding (other than Buyer’s written consentindemnification obligation based on the proposed settlement), in which consent case Dover shall not be unreasonably withheld or delayed. With respect have the sole right to represent the defense of any Acquired Company’s interests in such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before Proceeding (provided that Buyer and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense its representatives shall be governed by the second sentence of this Section 6.5(ipermitted, at Buyers expense, to be present at, and participate in, any such Tax Proceeding); and if the Closing Date is in the 2010 calendar year, provided that any failure by Dover to timely provide such defense notice shall be governed by the third sentence of this Section 6.5(ideemed to be notice as described in clause (1).

Contest Provisions. Each of Buyer and Seller (a) THK shall promptly notify the other Shareholder in writing upon receipt by THK, the RESO Surviving Corporation or any of their respective Affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) the Shareholder may be liable under this Agreement. Seller, at its expense, pursuant to Section 10.1 and Article IX. (b) The Shareholder shall control have the complete defense of right to represent RESO’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its his choice at its expense; provided, however, that if a settlement the Shareholder shall have no right to represent RESO’s interests in any Tax audit or compromise administrative or court proceeding unless the Shareholder shall have first notified THK in writing of the Shareholder’s intention to do so and shall have agreed with THK in writing that, as between THK and the Shareholder, the Shareholder shall be liable for any such Taxes that result from any audit or proceeding. RESO Surviving Corporation and its representatives shall have the right to fully participate at their expense in any audit or proceeding would be reasonably likely and to increase the consent to any settlement which affects a Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning Straddle Period ending after the Closing Date, (i) Buyer . THK shall be entitled, at its expense, have the sole right to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of defend RESO with respect to any issue arising with respect to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof periods ending on or before the Closing DateDate to the extent THK shall have agreed in writing to forego any indemnification under this Agreement with respect to the issue. Notwithstanding the foregoing, (i) Seller, at its expense, the Shareholder shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of THK, RESO Surviving Corporation or any Affiliate thereof for any period after the Closing Date to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of THK, which consent shall not may be unreasonably withheld or delayed. With respect in the sole discretion of THK unless the Shareholder has indemnified THK in a manner acceptable to THK against the defense effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer Buyer, Seller and Seller Brite shall promptly notify the each other in writing upon receipt by any of them, or any of their affiliates, or Company, of notice of any pending or threatened federal, state, local, or foreign tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of Savings for which such other party (Brite or any such other party’s Affiliates) may Seller would be liable under required to indemnify Buyer pursuant to this Agreement. Seller, at its expense, Brite shall control have the complete defense of sole right to represent Company's interests in any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitledchoice, at its expense. Notwithstanding the foregoing, Brite (i) shall consult with Buyer with respect to participate the resolution of any issue that would affect Buyer or Company in any way and to any extent, in the taxable periods subject to such audit proceeding or proceedingany other taxable periods (including, but not limited to, any resolution that would result in the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization of depreciation periods, the denial of amortization or depreciation deductions, or the reductions of loss or credit carry forwards to Company or Buyer), and (ii) Seller may shall not settle any such issue or compromise file any amended return relating to such audit or proceeding issue, without the consent of Buyer’s written consent, which consent shall not be unreasonably withheld or delayedwithheld. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Brite and Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate at Brite's expense in such proceedingsthe defense of any claim for Taxes for a period described in Section 4.5(e) for the portion of the year or period ending on November 30, and (ii) 1998 that is the subject of indemnification by Brite hereunder. Neither Company nor Buyer may not agree to settle any such claim for Taxes for the portion of the year or compromise such audit or proceeding period ending on November 30, 1998 that is the subject of indemnification by Brite hereunder without Seller’s the prior written consentconsent of Brite, which consent shall not be unreasonably withheld withheld. Brite shall not settle any such claim, or delayed. With take any other action with respect to such claim, without the defense consent of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateBuyer, if the Closing Date is in the 2009 calendar year, such defense which shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. (a) Each of Buyer Parent, on the one hand, and Seller RMO, on the other hand (the “Tax Indemnified Person”), shall promptly notify the chief tax officer (or other appropriate person) of RMO or Parent, as the case may be (the “Tax Indemnifying Person”), in writing upon receipt by the Tax Indemnified Person of written notice of any pending or threatened audits audits, adjustments, claims, examinations, assessments or assessments with respect other proceedings (a “Tax Audit”) which are likely to affect the liability for Taxes for which such other party (or any of such other party, provided, however, that failure to file timely written notice to the other party shall not affect the other party’s Affiliatesindemnification obligations hereunder unless such failure materially adversely affects the other party’s rights to participate in the Tax Audit. (b) may be liable under this Agreement. SellerIf such Tax Audit relates to any taxable period, at its expenseor portion thereof, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateDate or for any Taxes for which RMO is liable in full under this Agreement, including responding RMO shall, at his expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to information or document requests and managing any such audit or proceedingtaxable period, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof thereof, beginning on or after the Closing DateDate or for any Taxes for which Parent is liable in full under this Agreement, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer Parent shall, at its expense, control the complete defense and settlement of any such Tax audit or administrative or court proceeding relating Audit. (c) If such Tax Audit relates to Taxes for which both RMO and Parent are liable under this Agreement, to the extent practicable, such Tax items will be distinguished and each party will control the defense and settlement of Taxes for which it is so liable. If such Tax Audit relates to a taxable year or period beginning after the Closing Date; providedperiod, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Datethereof, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing DateDate and any Tax item cannot be identified as being a liability of only one party or cannot be separated from a Tax item for which the other party is liable, if Parent may either elect, at its expense, to control the Closing Date is defense and settlement of the Tax Audit or require RMO, at his expense, to control the defense and settlement of the Tax Audit, provided that such party defends the items as reported on the relevant Tax Return and provided further that no such matter shall be settled without the written consent of both parties, not to be unreasonably withheld. (d) Any party whose liability for Taxes may be affected by a Tax Audit shall be entitled to participate at its expense in the 2009 calendar year, such defense and to employ counsel of its choice at its expense and shall have the right to consent to any settlement of such Tax Audit (not to be governed by unreasonably withheld) to the second sentence of extent such settlement would have an adverse effect for a period for which that party is not liable for Taxes, under this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Agreement or otherwise.

Contest Provisions. Each of Buyer and Seller (a) Purchaser shall promptly notify the other Sellers’ Agent in writing upon receipt by Purchaser, any of its Affiliates or, after the Closing Date, the Company of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any taxable period ending on or before the Closing Date or to any Straddle Period; provided, that failure to comply with respect this provision shall not affect Purchaser’s right to Taxes for which indemnification under this Agreement except to the extent such other party (or failure materially impairs the Sellers’ ability to contest any such other partyTax liabilities. (b) The Sellers (acting through the Seller’s AffiliatesAgent) may be liable under this Agreement. Seller, at its expense, shall control have the complete defense of sole right to represent the Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes a Tax liability for which the Sellers would be required to indemnify Purchaser Indemnitees pursuant to Section 7.1(a) and that relates solely to a taxable year or period ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its the Sellers’ choice at its the Sellers’ expense; provided, however, that the Sellers shall have no right to represent the Company’s interests in any Tax audit or administrative or court proceeding unless (1) the Sellers’ Agent shall have first notified Purchaser in writing of the Sellers’ intention to do so and of the identity of counsel, if a settlement any, chosen by the Sellers in connection therewith, and (2) that the Sellers agree with Purchaser that, as between Purchaser and the Sellers, the Sellers shall be liable for any Damages relating to Taxes that result from such audit or compromise of proceeding; provided, further, that Purchaser and its representatives shall be permitted, at Purchaser’s expense, to be present at, and participate in, any such audit or proceeding would proceeding. Notwithstanding the foregoing, without the prior written consent of Purchaser, which consent may not be reasonably likely unreasonably withheld, conditioned or delayed, neither the Sellers nor any Affiliate of the Sellers shall be entitled to increase settle, either administratively or after the Tax commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of Buyer Purchaser, any Purchaser Indemnitee, the Company or any of its Affiliates Affiliate thereof for a taxable any period or portion thereof beginning after the Closing Date, Date to any extent unless the Sellers have indemnified each Purchaser Indemnitee against the effects of any such settlement. (ic) Buyer Purchaser shall be entitled, at its expense, have the sole right to participate represent the interests of the Company Parties in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes Tax liabilities other than those for a taxable year or period beginning after the Closing Datewhich Sellers have exercised such right pursuant to Section 7.5(b) and to employ counsel of Purchaser’s choice at Purchaser’s expense; provided, howeverthat the Sellers’ Agent and its representatives shall be permitted, that if a settlement or compromise of at the Sellers’ Agent’s expense, to be present at, and participate in, any such audit or proceeding would relating to a Straddle Period. Except as provided in the following sentence, any proceeding with respect to which the Sellers do not assume control in accordance with Section 7.5(b) may be reasonably likely settled or compromised in the discretion of Purchaser, and any such settlement or compromise shall not affect any Purchaser Indemnitee’s right to increase indemnification under this Agreement. Notwithstanding the Tax liability foregoing, without the prior written consent of Seller the Sellers’ Agent, which consent may not be unreasonably withheld, conditioned or delayed, neither the Purchaser nor any Affiliate of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, Purchaser shall be entitled to participate settle, either administratively or after the commencement of litigation, any claim for Taxes of any Company Party attributable to any Straddle Period which could adversely affect the liability for Taxes of Sellers under this Agreement. (d) Nothing herein shall be construed to impose on Purchaser any obligation to defend any Company Party or any Seller in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)proceeding.

Contest Provisions. Each of (a) Buyer and Seller or Sellers, as the case may be, shall promptly notify the other party in writing upon receipt by them, any of their Affiliates, or any Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments which might affect the Tax liabilities for which the other party might be liable pursuant Section 8.2.1. (b) Sellers (x) shall, with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Sellerimposed on a Subsidiary, at its expense, shall control have the complete defense of sole right to represent each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Pre-Closing Tax Periods or otherwise relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding which Sellers may be liable pursuant to information or document requests and managing any such audit or proceedingthis Section 8.2, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (iiy) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expensewith respect to Taxes imposed on the Business, Purchased Assets, and Assumed Liabilities (other than Taxes imposed on a Subsidiary), have the sole right to control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Pre-Closing DateTax Periods, and to employ counsel of its choice at its own expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely Buyer shall have the right to increase participate in the Tax liability of Seller audits or any of its Affiliates for a taxable period administrative or portion thereof ending on or before the Closing Date, (i) Seller, court proceedings described above at its own expense, . Sellers shall not be entitled to participate in such proceedings, and settle a Tax claim under the preceding sentence without Buyer's consent (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld withheld) if such settlement would result in Buyer or delayed. With any of the Subsidiaries being bound legally (in a way in which a closing agreement under Section 7121 of the Code entered into by a taxpayer with respect to a proposed adjustment may legally bind the defense taxpayer for future years with respect to such adjustment) for Tax periods (or portions thereof) beginning after the Closing Date and in all cases would result in a Material Adverse Effect; provided, however, that Sellers shall not be so restricted if and to the extent Sellers provide indemnification for such Material Adverse Effect. In the case of a Straddle Period with respect to Taxes imposed on a Subsidiary, Sellers shall be entitled to participate at its expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning attributable to the portion of such Straddle Period ending on or before and ending after the Closing Date, if including the Closing Date is in and, with the 2009 calendar yearwritten consent of Buyer, and at Seller's sole expense, may assume the entire control of such defense shall audit or proceeding. None of Buyer, any of its Affiliates, or any Subsidiary may settle any Tax claim for any Taxes for which Seller may be governed by the second sentence of liable pursuant to this Section 6.5(i); and if 8.2, without the Closing Date is in the 2010 calendar yearprior written consent of Seller, such defense shall which consent may not be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and (i) Purchaser shall notify Seller shall promptly notify the other in writing upon receipt by Purchaser, any of its Affiliates or, after the applicable Closing Date, any Group Company of notice of any pending Tax audit, assessment, reassessment or threatened audits administrative or assessments with respect court proceeding relating to Taxes a Tax Liability for which Seller may be required to indemnify Purchaser pursuant to Section 5.07(a); provided, that failure to comply with this provision shall not affect Purchaser’s right to indemnification under this Agreement except to the extent such other party (or failure materially impairs Seller’s ability to contest any such other party’s AffiliatesTax Liabilities. (ii) may be liable under this Agreement. Seller, at its expense, Seller shall have the right to control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes a Tax Liability for which Seller is reasonably expected to be required to indemnify Purchaser pursuant to Section 5.07(a) (a taxable year or period ending on or before the Closing Date“Tax Contest”), including responding to information or document requests and managing any such audit or proceeding, and shall employ by employing counsel or other advisors of its Seller’s choice at its Seller’s expense; provided, however, that if a settlement or compromise Seller shall provide reasonable notice to Purchaser in writing of Seller’s intention to do so; provided further, that Purchaser and its Representatives shall be permitted, at Purchaser’s expense, to be present at, and participate in, any such audit or proceeding would (other than any Tax Contest relating to Taxes of any Seller Consolidated Group). Notwithstanding the foregoing, neither Seller nor any Affiliate shall be reasonably likely entitled to increase settle, either administratively or after the commencement of litigation, any Tax liability Contest (other than any Tax Contest relating to Taxes of Buyer any Seller Consolidated Group, which Seller shall solely control) which could adversely affect the Liability for Taxes of Purchaser, any Group Company or any of its Affiliates Affiliate thereof for a any taxable period or portion thereof beginning after the applicable Closing Date without the prior written consent of Purchaser (not to be unreasonably withheld, conditioned or delayed). (iii) Purchaser shall have the right to control, at its cost and expense, any Tax Contest (other than any Tax Contest relating to Taxes of any Seller Consolidated Group) other than those for which Seller has exercised such right pursuant to Section 5.07(b)(ii), including by employing counsel of Purchaser’s choice at Purchaser’s expense. Notwithstanding the foregoing, neither Purchaser nor any Affiliate (including, after the applicable Closing Date, (iany Group Company) Buyer shall be entitledentitled to settle, at its expenseeither administratively or after the commencement of litigation, any claim for Taxes for which Seller is reasonably expected to be required to indemnify any Purchaser Indemnitee under Section 5.07(a) or which could adversely affect the Liability for Taxes of Seller or any Affiliate thereof for any taxable period, in each case without the prior written consent of Seller (not to be unreasonably withheld, conditioned or delayed). (iv) Notwithstanding anything herein to the contrary, in no event will Purchaser be permitted to control or otherwise participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax Contest or other audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Consolidated Group.

Contest Provisions. Each of Buyer and Seller Acquiror shall promptly notify the other Parent, as soon as reasonably practicable, in writing upon receipt by Acquiror, any of its Affiliates, or any Target Entity of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (Parent or any such other party’s Affiliates) of its Affiliates may be liable under this Agreementliable. Seller, at Parent or its expense, designee shall control have the complete defense sole right to represent the interests of any Target Entity in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing DateDate or otherwise relating to Taxes for which Parent or any of its Affiliates may be liable, including responding to information or document requests and managing any settle such audit or proceedingmatters, and shall to employ counsel or other advisors of its choice at its expense; providedprovided that none of Parent, howeverits designee, that if a settlement or its Affiliates may concede, settle or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or claim for any Taxes for which Acquiror, any of its Affiliates for a taxable period Affiliates, or portion thereof beginning after any Target Entity may be liable, without the Closing Dateprior written consent of Acquiror (such consent not to be unreasonably withheld), (i) Buyer and Acquiror or its designee shall be entitled, entitled to participate at its expenseexpense in any such Tax audit or administrative or court proceeding. In the case of a Straddle Period, Parent or its designee shall be entitled to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending before the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller Date and for which Parent or any of its Affiliates for a taxable period may be liable, and with the written consent of Acquiror (such consent not to be unreasonably withheld) and at Parent’s or portion thereof ending on or before the Closing Date, (i) Seller, at its designee’s sole expense, shall be entitled Parent or its designee may assume the entire control of such audit or proceeding, subject to participate the rights of Acquiror in the prior sentence. None of Acquiror, any of its Affiliates or any Target Entities (and, where relevant, a “partnership representative” of any such proceedingsentity) may concede, and (ii) Buyer may not settle or compromise any Tax claim for any Taxes for which Parent or any of its Affiliates may be liable, without the prior written consent of Parent (such audit or proceeding without Seller’s written consent, which consent shall not to be unreasonably withheld withheld). Nothing in this Agreement shall prevent Acquiror, in the event of any “partnership” audit, examination or delayed. With assessment relating to any Tax matters of any Target Entity, from causing the applicable “partnership representative” to make the “push-out” election under Section 6226 of the Code (to the extent permitted under applicable law) in its sole discretion, and Acquiror shall cause such election to be made if Parent so requests with respect to any audit, examination or assessment which might affect the defense Tax liabilities for which Parent or any of its Affiliates may be liable. In the event of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before conflict between ARTICLE X and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year7.02, such defense shall be governed by the third sentence of this Section 6.5(i)7.02 shall control.

Contest Provisions. Each of Buyer and Purchaser shall promptly, but in no event later than 10 days after receipt, notify Seller shall promptly notify the other in writing upon receipt by Purchaser, any of its Affiliates, any Company Member or any Subsidiary of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to this Agreement. Seller, at its expense, Seller shall control have the complete defense of sole right to represent each Company Member and each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to this Agreement, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that if . In the case of a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning before and ending after the Closing Date, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes attributable to the portion of such period ending on and including the Closing Date and, with the written consent of Purchaser and at Seller's sole expense, may assume the entire control of such audit or proceeding. None of Purchaser, any of its Affiliates, any Company Member or any Subsidiary may settle any Tax claim for a any Taxes for which Seller may be liable pursuant to this Agreement, without the prior written consent of Seller, which consent may not be unreasonably withheld. From the date hereof, Seller shall not make or terminate any Tax election, settle or compromise any Tax dispute, or enter into any closing agreement if such action would materially increase the Taxes of any Company Member for any taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise Date without the prior written consent of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consentPurchaser, which consent shall may not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each CMS Energy or one of Buyer and Seller its subsidiaries shall promptly notify the other Stockholders in writing upon receipt by any Tax Indemnitee of notice of any pending or threatened audits federal, state, local or assessments with respect to Taxes foreign Tax audit or assessment (including any revenue agent report or notice of proposed adjustment) which may materially affect the Tax liabilities of Terra or its Subsidiaries for which the Stockholders would be required to indemnify the Tax Indemnitees pursuant to Section 10.1 or this Section 7.2, provided, that failure to comply with this provision shall not affect the Tax Indemnitees' right to indemnification hereunder except to the extent that such other party (or any omission results in a failure of actual knowledge of the Stockholders and the Stockholders are damaged as a result of such other party’s Affiliates) may be liable under this Agreementfailure of actual knowledge. Seller, at The Stockholders shall have the sole right to represent the interests of Terra and its expense, shall control the complete defense of Subsidiaries in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Balance Sheet Date, including responding and to information or document requests employ counsel of their choice at their expense, provided that the Tax Indemnitees (and managing their tax counsel) may, at their own expense, be present at and participate in any such audit or proceeding. Notwithstanding the foregoing, and the Stockholders shall employ counsel not be entitled to settle, either administratively or other advisors after the commencement of its choice at its expense; providedlitigation, howeverany claim for Taxes which would adversely affect the liability for Taxes of the Tax Indemnitees for any period after the Balance Sheet Date to any extent (including, that if a settlement but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or compromise cost adjustments, the lengthening of any such audit amortization or proceeding would be reasonably likely to increase depreciation periods, the denial of amortization, depreciation or depletion deductions, or the reduction of loss or credit carryforwards) without the prior written consent of the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which Indemnitees. Such consent shall not be unreasonably withheld or delayednecessary to the extent that the Stockholders have indemnified the Tax Indemnitees in a manner reasonably acceptable to the Tax Indemnitees against the effects of any such settlement. Buyer shallExcept to the extent that CMS Energy reasonably concludes that the presence of a representative of Management Stockholders will interfere with the contest of matters unrelated to the matters which are subject to indemnification by the Management Stockholders under this Section 7.2 ("Indemnified Tax Items"), a representative of the Management Stockholders (and their tax counsel) may, at its their own expense, control the complete defense of be present at and participate in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after Indemnified Tax Items. CMS Energy shall not settle any dispute with respect to Indemnified Tax Items without the Closing Date; providedconsent of the Management Stockholders, however, except that if a settlement or compromise of CMS may settle any such audit or proceeding would be reasonably likely dispute without the consent of the Management Stockholders if it agrees to increase relieve the Tax liability Management Stockholders of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With their indemnification obligation hereunder with respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)transaction.

Contest Provisions. (i) Each of Buyer and Seller Party shall promptly notify the other Party in writing upon receipt by it, or any of its Affiliates, of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments either (i) relating to the Company with respect to Taxes any taxable period ending on or before the Closing Date or any Straddle Period or (ii) relating to a Tax for which such other party Party or such other Party’s Affiliates would be liable pursuant to this Agreement or pursuant to applicable provisions of Law. (ii) The Seller Parties (or any such other party’s their Affiliates) may be liable under this Agreement. Seller, at its expense, shall control have the complete defense of sole right to represent the Company’s interests in any Tax audit or administrative or court proceeding relating to Taxes a Pre-Closing Tax Period (including the pre-Closing portion of a Straddle Period) or relating to a Tax for a taxable year or period ending on or before which the Closing Date, including responding Seller Parties otherwise would be liable pursuant to information or document requests and managing any such audit or proceedingthis Agreement, and shall to employ counsel or other advisors of its Parent’s choice at its Parent’s expense; provided, however, that if a settlement Alliant and its representatives shall be permitted, at Alliant’s sole expense, to be present at, and participate in, any such audit or compromise proceeding (except where such audit or proceeding does not relate to the Company); provided, further, that Parent shall keep Alliant and Alliant’s representatives promptly and reasonably informed regarding the progress of any such audit or proceeding would be reasonably likely (except to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in extent such audit or proceedingproceeding does not relate to Company), and (ii) Seller may not settle neither Parent nor its Affiliates shall settle, either administratively or compromise after the commencement of Litigation, any such audit or proceeding without Buyer’s the prior written consentconsent of Alliant, which consent shall may not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expense, Alliant shall be entitled to control the complete defense of any Tax audit or administrative or court proceeding all other Litigation relating to Taxes for a taxable year or period beginning after of the Closing DateCompany; provided, however, that if a settlement or compromise Parent and its Representatives shall be permitted, at Parent’s expense, to be present at, and participate in, any such Litigation related to any Taxes for which the Seller Parties would be liable pursuant to this Agreement; provided, further, that Alliant shall keep Parent and Parent’s Representatives promptly informed regarding the progress of any such audit or proceeding Action related to Taxes for which the Seller Parties would be reasonably likely liable pursuant to increase the Tax liability of Seller or any of this Agreement, and neither Alliant nor its Affiliates shall settle, either administratively or after the commencement of Litigation, any such Litigation related to Taxes for a taxable period or portion thereof ending on or before which the Closing Date, (i) Seller, at its expense, shall Seller Parties would be entitled liable pursuant to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding this Agreement without Seller’s the prior written consentconsent of Parent, which consent shall may not be unreasonably withheld withheld, conditioned or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each If, subsequent to the Closing, any of Buyer and Seller shall promptly notify the other in writing upon receipt of or any Purchased Entity receives notice of any pending audit, other administrative proceeding or threatened audits inquiry or assessments judicial proceeding involving Taxes (a “Tax Contest”) with respect to Taxes any Tax Return of any Purchased Entity or with respect to the Purchased Assets for which a Pre-Closing Tax Period, then within 15 calendar days after receipt of such other party (or any notice, Buyer shall notify Parent of such other party’s Affiliates) may be liable notice; provided that the failure to so notify Parent shall not relieve Parent of its indemnification obligations under this AgreementAgreement except to the extent that Parent has been damaged by such failure. Seller, at its expense, Parent shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateContest, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise any of the issues raised in such Tax Contest could have any such audit or proceeding would be reasonably likely to increase the Tax liability adverse impact on Taxes of Buyer or any of its Affiliates Purchased Entity or with respect to the Purchased Assets for a taxable period or portion thereof beginning after the Post-Closing DateTax Period, then Parent (i) shall afford Buyer shall be entitledthe opportunity to control jointly the conduct and resolution of the portion of such Tax Contest that could have such an impact, at its expense, (ii) keep Buyer informed of all developments on a timely basis with respect to participate in such audit or proceedingTax Contest to the extent that Buyer is not jointly controlling the conduct and resolution of such Tax Contest, and (iiiii) Seller may shall not settle or compromise resolve such audit or proceeding Tax Contests without Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Buyer shall, at its expense, If Parent shall have the right to control the complete defense conduct and resolution of any such Tax audit or administrative or court proceeding relating Contest but elect in writing not to Taxes for do so, then Buyer shall have the right to control the conduct and resolution of such Tax Contest, provided that Buyer shall keep Parent informed of all developments on a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any timely basis and Buyer shall not resolve such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding Contest without SellerParent’s written consent, which consent shall not be unreasonably withheld withheld, conditioned, or delayed. With respect to Each party shall bear its own costs for participating in such Tax Contest. In the defense event of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before conflict between this Section 8.7 and ending after the Closing Dateprovisions of Section 7.5, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence provisions of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense 8.7 shall be governed by the third sentence of this Section 6.5(i)control.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer or any of its Affiliates (including the Transferred Subsidiaries) of notice of any pending or threatened Tax audits or assessments with respect to Taxes which may affect the Tax Liabilities for which Seller would be required to indemnify Buyer pursuant to Section 5.6(a) or (b), PROVIDED that any failure to comply with this provision shall not affect Buyer's right to indemnification hereunder to the extent such other party (failure does not prejudice Seller's ability to defend such audit or any assessment or increases the amount of such other party’s Affiliates) may be liable under this AgreementTaxes. Seller, at its expense, Seller shall control have the complete defense of sole right to represent the relevant Transferred Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingPeriods, and shall to employ counsel or other advisors of its choice at its expense; provided, however, except that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, have the sole right to participate represent the Transferred Subsidiaries in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the issues that might give rise to an indemnification obligation of Buyer with respect to any Pre-Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely Periods pursuant to increase the Tax liability of Section 5.6(b). Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate settle either administratively or after the commencement of litigation without the consent of Buyer any claim for Taxes related to Tax audits or proceedings described in Schedule 5.6(h). Notwithstanding the foregoing, Seller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes represented by Seller that is not described in Schedule 5.6(h) and that may materially affect the liability for Taxes of Buyer or any Transferred Subsidiary for any period ending after the Closing Date to any extent (including, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards, except for such proceedings, and (iireductions of loss or credit carryforward realized in a Pre-Closing Period) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of Buyer, which consent shall not be unreasonably withheld or delayedwithheld. With respect Such consent shall not be necessary to the extent that Seller has agreed in writing to indemnify Buyer against the effects of any such settlement. Seller shall be entitled to participate at its expense in the defense of any Tax audit or administrative or court proceeding relating to claim for Taxes for a taxable year or period beginning on or before and ending after the Closing DateDate which may be the subject of indemnification by Seller pursuant to Section 5.6(b) and, if with the written consent of Buyer, and at its sole expense, may assume the entire defense of such Tax claim. Neither Buyer nor any Transferred Subsidiary may agree to settle any Tax claim for the portion of the year or period ending on the Closing Date is in which may be the 2009 calendar yearsubject of indemnification by Seller under Section 5.6(b) without the prior written consent of Seller, such defense which consent shall not be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)unreasonably withheld.

Contest Provisions. Each of Buyer and Seller The Purchaser shall promptly notify the other Provant in writing upon receipt by the Purchaser or any of its affiliates of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments that may affect any Tax liability for which Provant is liable pursuant to Section 6.2. Provant shall have (i) the sole right to represent the interests of Provant with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of Business in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods commencing after December 14, 1999 and ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense, and (ii) the sole right to settle such audit or proceeding, either administratively or after the commencement of any litigation proceeding relating to Taxes in respect of the Business for any taxable period commencing after December 14, 1999 and ending on or before the Closing Date; provided, however, that in each case, if the outcome of such audit or proceeding is reasonably likely to materially adversely affect the Purchaser (after assuming the payment of any amount to be paid by Provant under Section 6.2) for a settlement taxable period commencing after the Closing Date, the Purchaser shall have the right to assume control of such audit or compromise of proceeding and Provant shall only have a right to participate at its expense in such audit or proceeding and shall have no right to settle such audit or proceeding, provided that the Purchaser shall not have the right to settle any such audit or proceeding would for which Provant may be reasonably likely to increase liable under Section 6.2 without the Tax liability prior written consent of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consentProvant, which consent may be withheld in the sole discretion of Provant. In the case of any Straddle Period, Provant shall not be unreasonably withheld or delayed. Buyer shall, entitled to participate at its expense, control the complete defense of expense in any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of the Purchaser, that if a settlement or compromise and at Provant’s sole expense, may assume the entire control of any such audit or proceeding would be reasonably likely to increase proceeding. None of the Tax liability of Seller Purchaser or any of its Affiliates affiliates may agree to settle any Tax claim for a taxable period or portion thereof ending on or before which Provant may be liable under Section 6.2 without the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s prior written consentconsent of Provant, which consent shall not may be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence sole discretion of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Provant.

Contest Provisions. Each of (a) In the event (i) Seller or its Affiliates or (ii) Buyer and Seller shall promptly notify the other in writing upon receipt of or its Affiliates receives notice of any pending or threatened audits Tax audit or assessments assessment or other dispute concerning Taxes (a “Tax Claim”) with respect to Taxes for which the other Party may incur liability under this Article IX, the Party in receipt of such notice promptly shall transmit to the other party Party a Claim Notice of such matter; provided that failure of a Party to comply with this provision shall not affect any Party’s right to indemnification hereunder unless such failure materially adversely affects the ability of the Party that did not receive notice to challenge such Tax audits or assessments. (b) Subject to Section 9.6, Seller shall have the sole right to represent the interests of the Company or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of Company Subsidiary in any Tax audit or administrative or court proceeding Claim relating to Taxes for a any taxable year or period ending on or before the Closing Date, including responding Date to information or document requests the extent such Tax Claim is subject to indemnification by Seller and managing any such audit or proceeding, and shall to employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverSeller shall not be entitled to settle, that if either administratively or after the commencement of a settlement or compromise Legal Proceeding, any Tax Claim with respect to any Tax Return of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer Company or any Company Subsidiary without the prior written consent of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably conditioned, withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall will be entitled to participate in the defense of such proceedingsTax Claim at its own expense; provided that, and for the avoidance of doubt, Buyer shall not have participation rights in respect of a Tax Claim relating to a Tax Return of Seller that is prepared on a consolidated, combined or unitary basis. (iic) Buyer shall have the sole right to represent the interests of the Company or any Company Subsidiary in any Tax Claim for any taxable period including (but not ending on) the Closing Date or beginning after the Closing Date and to employ counsel of its choice at its expense. Notwithstanding the foregoing, Buyer shall not be entitled to settle, either administratively or after the commencement of a Legal Proceeding, any Tax Claim that adversely would affect the liability of Seller (including any Taxes that may not settle be payable by any owners of Seller) for Taxes or compromise such audit or proceeding create an indemnity obligation on the part of Seller without the prior written consent of Seller’s written consent, which consent shall not be unreasonably conditioned, withheld or delayed. With respect ; provided, however, that such consent shall not be required to the defense extent that Buyer indemnifies Seller against the effects of any Tax audit or administrative or court proceeding relating such settlement. Where consent to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date settlement is in the 2009 calendar year, such defense shall be governed withheld by the second sentence of Seller pursuant to this Section 6.5(i); and if the Closing Date is 9.3, Seller may participate in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)any further proceeding.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Sellers in writing upon receipt by Buyer, any of its Affiliates or, after the Closing Date, the Company or any Subsidiary of notice of any pending or threatened Tax audits or assessments with respect to Taxes which may materially affect the Tax liabilities of the Company or any Subsidiary for which Sellers would be required to indemnify Buyer pursuant to Section 9.1, provided that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the extent such other party (or failure materially impairs Sellers' ability to contest any such other partyTax liabilities. Sellers shall have the sole right to represent the Company’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of and each Subsidiary’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its Sellers' choice at its Sellers' expense; provided, however, that if a settlement Sellers shall have no right to represent the Company’s or compromise any Subsidiary’s interests in any Tax audit or administrative or court proceeding unless Sellers shall have first notified Buyer in writing of Sellers' intention to do so and shall have agreed with Buyer in writing that, as between Buyer and Sellers, Sellers shall be liable for any Taxes that result from such audit or proceeding; provided, further that Buyer and its representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any such audit or proceeding would proceeding. Nothing herein shall be reasonably likely construed to increase the Tax liability of impose on Buyer or any of its Affiliates for a taxable period Affiliate thereof any obligation to defend the Company or portion thereof beginning after the Closing Date, (i) any Subsidiary in any Tax audit or administrative or court proceeding. Buyer shall be entitled, at its expense, have the sole right to participate in such audit defend the Company or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Subsidiary with respect to any issue arising with respect to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof periods ending on or before the Closing DateDate to the extent Buyer shall have agreed in writing to forego any indemnification under this Agreement with respect to such issue. Notwithstanding the foregoing, (i) Seller, at its expense, Sellers shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of the Buyer, the Company, any Subsidiary or any Affiliate thereof for any period after the Closing Date to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of Buyer, which consent shall not may be unreasonably withheld or delayed. With respect in the sole discretion of Buyer unless Sellers have indemnified the Buyer in a manner acceptable to Buyer against the defense effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each Promptly after receipt by Buyer, Seller or one of Buyer and Seller their Affiliates of written notice of the assertion or commencement of any claim, audit, examination or other proposed change or adjustment by any taxing authority relating to a Pre-Closing Tax Period (a "Tax Claim"), the recipient shall promptly immediately notify the other party hereto. Such notice shall contain factual information (to the extent known) describing the asserted Tax Claim in writing upon receipt of notice reasonable detail and shall include copies of any pending notice or threatened audits or assessments with other document received from any taxing authority in respect to Taxes for which such other party (or of any such other party’s Affiliatesasserted Tax Claim. The failure of Seller to receive prompt notice from Buyer or its Affiliates as provided herein shall not relieve Seller of any of its obligations under Section 8.3(b) may be liable under this Agreementexcept to the extent such failure has a material adverse effect on the Seller's ability to defend the Tax Claim. Seller, at its expense, Seller shall control have the complete defense of right to represent each Subsidiary's interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Pre-Closing Date, including responding to information or document requests and managing any such audit or proceedingTax Periods, and shall to employ counsel or other advisors of its Seller's choice at its expense; provided, however, that if a settlement or compromise of Buyer and its representatives shall be permitted, at their expense, to be present at any such audit or proceeding proceeding. Notwithstanding the foregoing, neither Seller nor any Affiliate of Seller shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which would be reasonably likely to increase materially adversely affect the Tax liability for Taxes of Buyer Buyer, or any of its Affiliates Subsidiary or for a taxable any period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding Date without the prior written consent of Buyer’s written consent, which . Such consent shall not be unreasonably withheld withheld, and shall not be necessary to the extent that (i) the settlement is consistent with the positions previously taken by the Subsidiary, or delayed. (ii) Seller has agreed to indemnify Buyer shall, at its expense, control or the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after Company against the Closing Date; provided, however, that if a settlement or compromise effects of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.

Contest Provisions. Each of Buyer and Seller shall promptly notify If, subsequent to the other in writing upon receipt of Closing, Parent or the Company receives notice of any pending or threatened audits or assessments a Tax Contest with respect to Taxes for which such other party (or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes Return for a taxable year or period ending on or before the Closing Date, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing DateDate (a “Pre-Closing Return”), then within fifteen (i15) Sellerdays after receipt of such notice, at its expenseParent shall notify the Company Stockholder Representative of such notice. The Company Stockholder Representative shall have the right to control the conduct and resolution of such Tax Contest, shall be entitled to participate provided, however, that if any of the issues raised in such proceedingsTax Contest could have an impact on Taxes of the Company for a Tax period or portion thereof beginning on or after the Closing Date (a “Post-Closing Tax Period”), then the Company Stockholder Representative shall afford Parent the opportunity to control jointly the conduct and (ii) Buyer may resolution of the portion of such Tax Contest which could have an impact on Taxes of the Company in any Post-Closing Tax Period provided, further, that if the Company Stockholders are not settle or compromise reasonably expected to fully indemnify Parent Indemnified Parties pursuant to this Agreement for any Damages arising from such audit or proceeding Tax Contest, then Parent shall control the conduct and resolution of such Tax Contest. If the Company Stockholder Representative shall have the right to control the conduct and resolution of such Tax Contest but elect in writing not to do so, then Parent shall have the right to control the conduct and resolution of such Tax Contest, provided that Parent shall keep the Company Stockholder Representative informed of all developments on a timely basis and Parent shall not resolve such Tax Contest in a manner that could reasonably be expected to have an adverse impact on the indemnifying parties’ indemnification obligations under this Agreement without Seller’s Company Stockholder Representative written consent, which consent shall not be unreasonably withheld withheld. Each party shall bear its own costs for participating in such Tax Contest. “Tax Contest” means any audit, other administrative proceeding or delayed. With respect to the defense of any Tax audit inquiry or administrative or court judicial proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)involving Taxes.

Contest Provisions. Each of Buyer and Seller Star shall promptly notify the other CKE in writing upon receipt by Star, any of its affiliates or the Star Group of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments with respect to Taxes which may materially affect the tax liabilities of the Star Group for which such other party (or CKE would be required to indemnify Star pursuant to Section 3.1(a), provided that failure to comply with this provision shall not affect Star's right to indemnification hereunder. CKE shall have the sole right to represent the Star Group's interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Effective Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided. Notwithstanding the foregoing, howeverCKE shall not be entitled to settle, that if a settlement either administratively or compromise after the commencement of litigation, any claim for Taxes which would adversely affect the liability for Taxes of Star or the Star Group for any period after the Effective Date to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carry forwards) without the prior written consent of CKE. Such consent shall not be unreasonably withheld. CKE shall be entitled to participate at its expense in the defense of any claim for Taxes for a year or period ending after the Effective Date which may be the subject of indemnification by CKE pursuant to Section 3.1(a) and, with the written consent of Star, and at its sole expense, may assume the entire defense of such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or tax claim. Neither Star nor Summit nor any of its Affiliates the Star Group may agree to settle any tax claim for a taxable the portion of the year or period or portion thereof beginning after ending on the Closing Date, (iEffective Date which may be the subject of indemnification by CKE under Section 3.1(a) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s the prior written consentconsent of CKE, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)withheld.

Contest Provisions. Each of (i) Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates, or any of the Acquired Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under pursuant to this Agreement. Seller, at its expense, Section 8.1. (ii) Seller shall have the sole right to represent each Acquired Company’s interests in and control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to this Section 8.1, and shall to employ counsel or other advisors of its choice at its expense; provided, however, that (A) Buyer shall be entitled to participate at its expense in any such Tax audit or administrative or court proceeding and (B) Seller shall not settle any such Tax audit or administrative or court proceeding without the prior written consent of Buyer, if a the effect of such settlement could be to materially increase the Taxes payable by Buyer or compromise the Acquired Companies for any taxable year or period beginning after the Closing Date or the portion of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof Straddle Period beginning after the Closing Date. In the case of a Straddle Period, (i) Buyer Seller shall be entitled, entitled to participate at its expense, to participate expense in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating (in whole or in part) to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing Date; providedDate and, howeverwith the written consent of Buyer, that if a settlement or compromise and at Seller’s sole expense, may assume the entire control of any such audit or proceeding would be reasonably likely to increase the Tax liability proceeding. None of Seller Buyer, any of its Affiliates, or any of its Affiliates the Acquired Companies shall settle any Tax claim for a taxable period or portion thereof ending on or before any Taxes for which Seller may be liable pursuant to paragraph (a) of this Section 8.1 without the Closing Date, (i) prior written consent of Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall may not be unreasonably withheld withheld, conditioned or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i).

Contest Provisions. Each of (i) Buyer and shall notify Seller shall promptly notify the other in writing upon receipt by Buyer, any of its Affiliates or, after the Closing Date, the Company of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments which may materially affect the Tax liabilities of the Company for which Seller would be required to indemnify Buyer Group Members pursuant to paragraph (a) of this Section 6.2, provided that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the extent such failure materially impairs Seller’s ability to contest any such Tax liabilities. (ii) Seller shall have the sole right to represent the Company’s interests in any Tax audit or administrative or court proceeding relating to Tax liabilities for which Seller would be required to indemnify Buyer Group Members pursuant to paragraph (a) of this Section 6.2 and which relate to taxable periods ending on or before the Closing Date, and to employ counsel of Seller’s choice at Seller’s expense; provided, however, that Seller shall have no right to represent the Company’s interests in any Tax audit or administrative or court proceeding unless Seller shall have first notified Buyer in writing of Seller’s intention to do so and of the identity of counsel, if any, chosen by Seller in connection therewith, and shall have agreed with Buyer in writing that, as between Buyer and Seller, Seller shall be liable for any Losses and Expenses relating to Taxes that result from such audit or proceeding; provided, further, that Buyer and its representatives shall be permitted, at Buyer’s expense, to be present at, and participate in, any such audit or proceeding. Nothing herein shall be construed to impose on Buyer or any Affiliate thereof any obligation to defend the Company in any Tax audit or administrative or court proceeding. Buyer shall have the sole right to defend the Company with respect to Taxes for which such other party (or any issue arising with respect to any such other party’s Affiliates) may be liable Tax audit or administrative or court proceeding to the extent Buyer shall have agreed in writing to forego any indemnification under this AgreementAgreement with respect to such issue. SellerNotwithstanding the foregoing, at its expenseSeller shall not be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could reasonably be expected to adversely affect the liability for Taxes of any Buyer Group Member or the Company for any period after the Closing Date to any extent unless Seller has received the prior written consent of Buyer, which consent shall control not be unreasonably withheld. (iii) In the complete defense case of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing DateStraddle Period, including responding to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning after the Closing Date, (i) Buyer shall have the sole right to represent the Company’s interests and Seller shall be entitled, at its expense, entitled to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after attributable to the portion of such Straddle Period ending on and including the Closing DateDate for which Seller would be required to indemnify Buyer Group Members pursuant to paragraph (a) of this Section 6.2; provided, however, that if a settlement or compromise of any to the extent that such audit or proceeding relates solely to Tax liabilities for which Sellers would be reasonably likely required to increase indemnify Buyer Group Members pursuant to paragraph (a) of this Section 6.2 and to the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof of such Straddle Period ending on or before the Closing Date, (iDate this Section 6.2(c)(iii) Seller, at its expense, shall be entitled to participate in such proceedings, and (ii) Buyer may not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With respect to the defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before apply and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense Section 6.2(c)(ii) shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)apply.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or any Purchased Entity of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) Seller may be liable under this Agreementpursuant to SECTION 8.2(A). Seller, at its expense, Seller shall control have the complete defense of sole right to represent the Purchased Entity's interests in any Tax audit or administrative or court proceeding ("TAX PROCEEDING") relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date or otherwise relating to information or document requests and managing any such audit or proceedingTaxes for which Seller may be liable pursuant to SECTION 8.2(A), and shall to employ counsel or other advisors of its choice at its expense; providedPROVIDED, howeverHOWEVER, that (A) Seller shall consult with Buyer before taking any significant action in connection with such Tax Proceeding if a settlement or compromise of any such audit or proceeding Tax Proceeding would be reasonably likely to increase the Tax liability of adversely affect Buyer or any of its Affiliates for a taxable period or portion thereof beginning (including, after the Closing, the Purchased Entities), and (B) Seller shall not settle, compromise or abandon any such Tax Proceeding, if such action would adversely affect Buyer or any of its Affiliates (including, after the Closing, the Purchased Entities), without obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld, delayed or conditioned. For the avoidance of doubt, Seller shall have the sole right (subject to the preceding sentence) to control any Tax Proceeding relating to the pre-Closing Daterestructuring of the Purchased Entities resident in Mexico. In the case of a Tax Proceeding for any Straddle Period of a Purchased Entity (other than a Straddle Period governed by the preceding sentence), the Controlling Party shall have the right to control such Tax Proceeding; PROVIDED, HOWEVER, that (iA) Buyer the Controlling Party shall provide the Non-controlling Party with a timely and reasonably detailed account of each phase of such Tax Proceeding; (B) the Controlling Party shall consult with the Non-controlling Party before taking any significant action in connection with such Tax Proceeding; (C) the Controlling Party shall consult with the Non-controlling Party and offer the Non-controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding (and will consider such comments in good faith); (D) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding; (E) the Non-controlling Party shall be entitled, at its expense, entitled to participate in such audit Tax Proceeding if such Tax Proceeding would have an adverse impact on the Non-controlling Party or proceeding, any of its Affiliates; and (iiF) Seller may the Controlling Party shall not settle settle, compromise or compromise abandon any such audit or proceeding Tax Proceeding without Buyer’s obtaining the prior written consent, which consent shall not be unreasonably withheld withheld, delayed or delayed. Buyer shallconditioned, at its expenseof the Non-controlling Party if such settlement, control compromise or abandonment would adversely affect the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller Non-controlling Party or any of its Affiliates Affiliates. "CONTROLLING PARTY" shall mean whichever Selling Entity, on the one hand, or Buyer, on the other hand, is reasonably expected to bear the greater Tax liability in connection with a Tax Proceeding for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedingsStraddle Period, and (ii) Buyer may "NON-CONTROLLING PARTY" shall mean whichever of Selling Entity, on the one hand, or Buyer, on the other hand, is not settle or compromise such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With the Controlling Party with respect to the defense such Tax Proceeding. None of Buyer, any of its Affiliates or any Purchased Entity may settle any Tax audit or administrative or court proceeding relating claim for any Taxes 76 for which Seller may be liable pursuant to Taxes for a taxable year or period beginning on or before and ending after SECTION 8.2(A), without the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence prior written consent of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer and (a) Seller shall promptly notify have primary responsibility for contesting (at Seller’s expense) any audit, litigation, contest, dispute, negotiation or other proceeding with any Tax Authority (a “Tax Proceeding”) and shall have discretion and authority to pay, settle or compromise any such Tax Proceeding (including but not limited to selection of counsel, the other in writing upon receipt of notice pursuit or waiver of any pending administrative proceeding or threatened audits the right to pay the Tax and xxx for a refund or assessments contest the Tax Proceeding in any permissible manner) with respect to Taxes for which such other party (the Company or any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period ending on or before the Closing Date, including responding to information or document requests Company Subsidiary and managing any such audit or proceeding, and shall employ counsel or other advisors of its choice at its expense; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates is for a taxable period with respect thereto that ends on or portion thereof beginning after the Closing Date, (i) Buyer shall be entitled, at its expense, to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after before the Closing Date; provided, however, (1) that if a settlement Buyer (or compromise of any such audit or proceeding would be reasonably likely to increase its advisors) may fully participate at Buyer’s sole expense in the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof ending on or before the Closing Date, (i) Seller, at its expense, shall be entitled to participate in such proceedingsProceeding, and (ii2) Buyer may Seller shall not settle any Tax Proceeding in a manner that could reasonably be expected to adversely affect Buyer or compromise such audit or proceeding the Company Subsidiaries after the Closing Date without Seller’s the prior written consent, consent of Buyer (which consent shall not be unreasonably withheld withheld, conditioned or delayed). With Seller shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Proceeding. Upon the conclusion of any Tax Proceeding in accordance with the foregoing, whether by way of settlement or otherwise, Buyer shall cause each of the Company Subsidiaries and its respective officers to execute any and all agreements, instruments or other documents that are necessary or appropriate to conclude such Tax Proceeding. If Seller does not assume the defense of any such Tax Proceeding, Buyer may defend the same in such manner as it may deem appropriate, including settling such audit or administrative or court proceeding after giving at least ten business days’ prior written notice to Seller setting forth the terms and conditions of settlement. (b) In the case of any Tax Proceeding related to a Straddle Period Tax that both Seller and Buyer are responsible for under this Agreement, each Party shall be entitled to fully participate in (each at its own expense) and shall control that portion of the proceedings relating to Taxes the Tax for a taxable year or period beginning on or before and ending after the Closing Datewhich it is responsible, but, if the Closing Date is control cannot be so divided, the Party responsible for the greater share of the Tax shall be entitled to control the matter. (c) With respect to issues relating to a potential adjustment for which both Seller and Buyer or the Company or the Company Subsidiaries could be liable pursuant to this Section 5.7, (1) each party may participate (at its own expense) in the 2009 calendar yearTax Proceeding, such defense and (2) the Tax Proceeding shall be governed controlled by that party which would bear the second burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Section 6.5(i); 5 by Buyer and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)Seller.

Contest Provisions. Each of Buyer and Seller shall promptly notify the other Seller in writing upon receipt by Buyer, any of its Affiliates or any of the Acquired Companies of notice of any pending or threatened audits federal, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which would affect the Tax Liabilities for which Seller is liable pursuant to Section 10.01(a) (a “Pre-Closing Tax Contest”); provided, however, that failure to provide such other party notice shall not void any indemnity hereunder except to the extent Seller is actually prejudiced by such failure. Seller shall have the right to elect, within thirty (or 30) days of receipt of written notice, to represent the Acquired Companies’ interests in any such other party’s Affiliates) may be liable under this Agreement. Seller, at its expense, shall control the complete defense of any Tax audit or administrative or court proceeding conducted on a combined, consolidated or unitary basis with Seller or solely relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding Date the resolution of which is not reasonably expected to information affect any Taxes or document requests Tax position in any Tax period beginning on or after the Closing Date and managing any such audit or proceedingfor which Seller is liable pursuant to Section 10.01(a), and shall to employ counsel or other advisors of its choice at its expense; providedprovided that Buyer shall have the right to participate in any such audit or proceeding with respect to Taxes imposed on the Acquired Companies, howeverthe Transferred Assets or the Business (except to the extent that such audit or proceeding is with respect to U.S. federal or state income Taxes imposed or calculated on a combined, that if a settlement consolidated or compromise unitary basis with Seller or any of its Affiliates) and Seller shall (a) keep Buyer informed of the progress of any such audit or proceeding would be reasonably likely to increase the Tax liability of Buyer or any of its Affiliates for in a taxable period or portion thereof beginning after the Closing Datetimely manner, (ib) promptly provide Buyer shall be entitledwith copies of all material correspondence or other material documents relating to such audit or proceeding, at its expense, (c) promptly provide notice to participate Buyer of any material scheduled meetings (whether telephonic or in person) with any Taxing Authority relating to such audit or proceeding, and (iid) Seller may not settle or compromise any such audit or proceeding without the prior written consent of Buyer’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed. , to the extent such settlement could reasonably be expected to affect any Taxes or Tax position of the Buyer shall, at or its expense, control Affiliates (including the complete defense of Acquired Companies) in any Tax audit or administrative or court proceeding relating to Taxes for a taxable Taxable year or period beginning (or portion thereof) ending after the Closing Date; provided. If Seller does not or cannot elect to control a Pre-Closing Tax Contest, howeverBuyer shall control such proceeding and Seller shall have the rights of the non-controlling party, that if a settlement or compromise mutatis mutandis. In the case of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates an Acquired Company for a taxable period Straddle Period, Seller shall be entitled to elect to participate at its expense in such audit or proceeding with respect to the portion thereof of such Straddle Period ending on or before the Closing DateDate for which Seller is liable pursuant to Section 10.01(a). None of Buyer, (i) Seller, at any of its expense, shall be entitled to participate in such proceedings, and (ii) Buyer Affiliates or the Acquired Companies may not settle or compromise any such audit or proceeding without Seller’s written consent, which consent shall not be unreasonably withheld or delayed. With with respect to the defense portion of any Tax such audit or administrative or court proceeding relating to Taxes for a taxable year which Seller is liable pursuant to Section 10.01(a), without the prior written consent of Seller, not to be unreasonably withheld, conditioned or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)delayed.

Contest Provisions. Each of Buyer and Seller (a) THK shall promptly notify the other Shareholders in writing upon receipt by THK, Vintacom Acquisition or any of their respective Affiliates of notice of any pending or threatened audits federal, provincial, state, local or foreign Tax audits, examinations or assessments with respect to Taxes which might affect the Tax liabilities for which such other party (or any such other party’s Affiliates) the Shareholders may be liable under this Agreement. Seller, at its expense, pursuant to Section 10.1 and Article IX. (b) The Shareholders shall control have the complete defense of right to represent Vintacom’s interests in any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period periods ending on or before the Closing Date, including responding and to information or document requests and managing any such audit or proceeding, and shall employ counsel or other advisors of its their choice at its Vintacom’s expense; provided, however, that if a settlement the Shareholders shall have no right to represent Vintacom’s interest in any Tax audit or compromise administrative or court proceeding unless any one or more of the Shareholders shall have first notified THK in writing of such Shareholder or Shareholders’ (the “Indemnifying Shareholder”) intention to do so and shall have agreed with THK in writing that, as between THK and the Indemnifying Shareholders, the Indemnifying Shareholders shall be liable for any such Taxes due in respect of taxable years or periods ending on or before the Closing Date that result from any audit or proceeding. Vintacom Acquisition and its representatives shall have the right to fully participate at its expense in any audit or proceeding would be reasonably likely and to increase the consent to any settlement which affects a Tax liability of Buyer or any of its Affiliates for a taxable period or portion thereof beginning Straddle Period ending after the Closing Date, (i) Buyer . THK shall be entitled, at its expense, have the sole right to participate in such audit or proceeding, and (ii) Seller may not settle or compromise such audit or proceeding without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall, at its expense, control the complete defense of defend Vintacom with respect to any issue arising with respect to any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning after the Closing Date; provided, however, that if a settlement or compromise of any such audit or proceeding would be reasonably likely to increase the Tax liability of Seller or any of its Affiliates for a taxable period or portion thereof periods ending on or before the Closing DateDate to the extent THK shall have agreed in writing to forego any indemnification under this Agreement with respect to the issue. Notwithstanding the foregoing, (i) Seller, at its expense, the Indemnifying Shareholders shall not be entitled to participate in such proceedingssettle, and either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of THK, Vintacom or any Affiliate thereof for any period after the Closing Date to any extent (iiincluding, but not limited to, the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) Buyer may not settle or compromise such audit or proceeding without Seller’s the prior written consentconsent of THK, which consent shall not may be unreasonably withheld or delayed. With respect in the Discretion of THK unless the Shareholders have indemnified THK in a manner acceptable to THK against the defense effects of any Tax audit or administrative or court proceeding relating to Taxes for a taxable year or period beginning on or before and ending after the Closing Date, if the Closing Date is in the 2009 calendar year, such defense shall be governed by the second sentence of this Section 6.5(i); and if the Closing Date is in the 2010 calendar year, such defense shall be governed by the third sentence of this Section 6.5(i)settlement.