Control of Tax Contests Other Than Third Party Claims Sample Clauses

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Control of Tax Contests Other Than Third Party Claims 

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Related to Control of Tax Contests Other Than Third Party Claims

• Control of Tax Contests (a) Except as otherwise provided in paragraphs (b) and (c), Parent shall control, and have sole discretion in handling, settling or contesting, any Tax Contest relating to any Joint Returns, as well as any Separate Returns that relate to a Pre-Distribution Tax Period or to a Straddle Period or other Tax Return if any such Tax Return is related to Taxes for which Parent is responsible pursuant to Article II, or the Tax treatment of the Separation Transactions, provided that (x) Parent shall act in good faith in connection with its control of any such Tax Contests and (y) SpinCo shall have the right at its sole cost and expense to participate in and advise on (including the opportunity to review and comment upon Parent’s communications with the Tax Authority, which comments shall be incorporated upon the consent of Parent, not to be unreasonably withheld, delayed or conditioned) such items for which SpinCo would reasonably be expected to be liable under Article II or Section 6.06 as a result of such Tax Contest. (b) Parent shall have exclusive control over any Separation Related Tax Contest, including exclusive authority with respect to any settlement of such Tax Contest, subject to the following provisions of this Section 9.02(b). In the event of any Separation Related Tax Contest as a result of which SpinCo could reasonably be expected (as determined in the sole discretion of Parent acting in good faith) to become liable for any Separation Tax Losses, (A) Parent shall keep SpinCo reasonably informed in a timely manner of all significant developments in respect of such Tax Contest and all significant actions taken or proposed to be taken by Parent with respect to such Tax Contest, (B) Parent shall timely provide SpinCo with copies of any written materials prepared, furnished or received in connection with such Tax Contest, (C) Parent shall consult with SpinCo reasonably in advance of taking any significant action in connection with such Tax Contest and (D) Parent shall offer SpinCo a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Contest. Notwithstanding anything in the preceding sentence to the contrary, the final determination of the positions taken, including with respect to settlement or other disposition, in any Separation Related Tax Contest shall be made in the sole discretion of Parent and shall be final and not subject to the dispute resolution provisions of Article XIII of this Agreement or Section 11.02 of the Separation and Distribution Agreement. (c) Except as otherwise provided in paragraph (a) or (b), SpinCo shall have sole control over any Tax Contest that relates to Separate Returns of the SpinCo Group for any Post-Distribution Tax Period.

• Tax Contests (a) If any party receives written notice from any Governmental Authority of a Tax Proceeding with respect to any Tax for which the other party is obligated to provide indemnification under this Agreement, such party shall within sixty (60) days thereof give written notice to the other party (or within such shorter time as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to such notice); provided, however, that the failure to give such notice shall not affect the indemnification provided hereunder except to the extent that the failure to give such notice materially prejudices the Indemnifying Party as provided in Section 11.6. (b) Upon written notice to Clarant within thirty (30) days after receipt of notification pursuant to Section 11.4(a), the Stockholders shall have the right, at their own expense, to control and make all decisions with respect to any Tax Proceeding relating to Taxes of the Company or any Subsidiary for any Taxable Period ending on or before the Closing Date. Clarant shall have the right to approve the counsel selected by the Stockholders to conduct any such Tax Proceeding, which approval shall not be unreasonably withheld, and to participate fully at its own expense with counsel of its own choosing in all aspects of the prosecution or defense of such Tax Proceeding. The Stockholders shall not take any action or position in any such Tax Proceeding if that action or position could reasonably be expected to increase the past, present or future Tax liability of Clarant or any of its Affiliates, or any Tax liability of the Company or any Subsidiary for any Taxable Period or portion thereof beginning after the Closing Date without the prior written consent of Clarant, which consent shall not be unreasonably withheld. The Stockholders shall not settle or otherwise terminate any such Tax Proceeding without the prior written consent of Clarant, which consent shall not be unreasonably withheld. (c) Upon written notice to Clarant within thirty (30) days after receipt of notification pursuant to Section 11.4(a), the Stockholders shall have the right, at their own expense, to jointly control and participate with Clarant in the conduct of any Tax Proceeding relating to Taxes of the Company or any Subsidiary for a Straddle Period. If Sellers exercise such right, neither party shall settle or otherwise terminate any such Tax Proceeding without the prior written consent of the other, which consent shall not be unreasonably withheld. (d) If the Stockholders do not exercise their right to assume control of or participate in any Tax Proceeding as provided under this Section 11.4, Clarant may defend or settle the same in such manner as it may deem appropriate in its sole and absolute discretion, without in any way limiting its rights of indemnification hereunder. (e) Except as otherwise provided in this Section 11.4, Clarant shall control all Tax Proceedings relating to Taxes and Tax Returns of the Company and the Subsidiaries. (f) In the event that the provisions of this Section 11.4 and the provisions of Section 11.3 hereof conflict or otherwise each apply by their terms, this Section 11.4 shall exclusively govern all matters concerning Tax Proceedings.

• Settlement of Third Party Claims Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 8.05(b). If a firm offer is made to settle a Third Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 8.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

• INDEMNITY IN THIRD-PARTY PROCEEDINGS To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 3, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually, and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that his or her conduct was unlawful.

• Non-Third Party Claims Upon discovery of any claim for which Buyer has an indemnification obligation under the terms of Section 12.1 which does not involve a claim by a third party against the Indemnitee, the Indemnitee shall give prompt notice to Buyer of such claim and, in any case, shall give Buyer such notice within 30 days of such discovery. A failure by Indemnitee to timely give the foregoing notice to Buyer shall not excuse Buyer from any indemnification liability except to the extent that Buyer is materially and adversely prejudiced by such failure.

• Control of Litigation (a) Subject to Section 8.5 and Section 8.6, the Parties acknowledge and agree that, from and after the Closing Date, as between Seller and a Purchaser, Seller shall be entitled exclusively to control, defend and settle any suit, action or proceeding, and any investigation arising out of or related to any Excluded Assets or Excluded Liabilities, and such Purchaser agrees to cooperate reasonably in connection therewith, it being understood that such Purchaser shall not be required to incur any cost in connection with any such settlement but may be required to provide a release to a third party claimant in respect of the specific matters involved in such suit, action, proceeding or investigation; provided, however, that Seller shall reimburse such Purchaser for all reasonable costs and expenses incurred by such Purchaser in providing such cooperation to Seller and shall not unreasonably interfere with operations at the Generation Facility in connection with any such control, defense or settlement. (b) Subject to Section 8.5 and Section 8.6, the Parties acknowledge and agree that, from and after the Closing Date, as between Seller and a Purchaser, such Purchaser shall be entitled exclusively (except as otherwise described in subsection (c) of this Section 2.5) to control, defend and settle any suit, action or proceeding, and any investigation arising out of or related to any Purchased Assets or Assumed Liabilities, such Purchaser and Seller agree to cooperate reasonably in connection therewith, and Seller agrees to cooperate reasonably in connection therewith, it being understood that Seller shall not be required to incur any cost in connection with any such settlement but may be required to provide a release to a third party claimant in respect of the specific matters involved in such suit, action, proceeding, or investigation; provided, however, that such Purchaser shall reimburse Seller (in accordance with such Purchaser's Proportionate Share) for all reasonable costs and expenses incurred in providing such cooperation to such Purchaser and shall not unreasonably interfere with Seller's or any of its Affiliates' operations. (c) Subject to Section 7.6, Section 8.5 and Section 8.6, the Parties acknowledge and agree that, from and after the Closing Date, Seller shall be entitled exclusively to control, defend and settle any action or proceeding associated with any Tax and related audit, appeals process or litigation for taxable periods occurring prior to the Closing Date.

• Indemnification in Third Party Proceedings Subject to Section 10 below, the Company shall indemnify Indemnitee to the fullest extent permitted by the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits Indemnitee to broader indemnification rights than the Code permitted prior to adoption of such amendment), if Indemnitee is a party to or threatened to be made a party to or otherwise involved in any proceeding, for any and all expenses, actually and reasonably incurred by Indemnitee in connection with the investigation, defense, settlement or appeal of such proceeding.

• Defense and Settlement of Third Party Claims The Indemnifying Party shall have the right (without prejudice to the right of any Indemnified Party to participate at its or his own expense through counsel of its or his own choosing) to defend against any Third Party Claim at its or his expense and through counsel of its or his own choosing and to control such defense if the Indemnifying Party gives written notice of its or his intention to do so within 15 business days of its or his receipt of notice of the Third Party Claim. The Indemnified Party shall cooperate fully in all reasonable respects in the defense of such Third Party Claim and shall make available to the Indemnifying Party or its or his counsel all pertinent information under their control relating thereto. The Indemnified Party shall have the right to elect to settle any Third Party Claim; provided, however, the Indemnifying Party shall not have any indemnification obligation with respect to any monetary payment to any third party required by such settlement unless the Indemnifying Party shall have consented thereto. The Indemnifying Party shall have the right to elect to settle any Third Party Claim subject to the consent of the Indemnified Party; provided, however, that if the Indemnified Party fails to give such consent within 15 business days of being requested to do so, the Indemnified Party shall, at its expense, assume the defense of such Third Party Claim and regardless of the outcome of such matter, the Indemnifying Party's liability hereunder shall be limited to the amount of any such proposed settlement. The foregoing provisions notwithstanding, in no event (a) may either Indemnifying Party adjust, compromise or settle any Third Party Claim unless such adjustment, compromise or settlement unconditionally releases the Indemnified Party from all liability, (b) may the Company Indemnifying Party adjust, compromise or settle any Third Party Claim if such adjustment, compromise or settlement affects the absolute and sole right of Provant or the Surviving Corporation to own or use any of the Company's assets or (c) may the Company Indemnifying Party defend any Third Party Claim which, if adversely determined, would materially impair the financial condition, business or prospects of Provant or the Surviving Corporation.

• Payment of Taxes and Claims; Tax Consolidation The Company shall pay, and cause each of its Subsidiaries to pay, (a) all material taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or property before any penalty or interest accrues thereon, and (b) all claims (including, without limitation, claims for labor, services, materials and supplies) for sums which have become due and payable and which by law have or may become a Lien (other than a Lien permitted by Section 7.03) upon any of the Company’s or such Subsidiary’s property or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, however, that no such taxes, assessments and governmental charges referred to in clause (a) above or claims referred to in clause (b) above (and interest, penalties or fines relating thereto) need be paid if being contested in good faith by appropriate proceedings diligently instituted and conducted and if such reserve or other appropriate provision, if any, as shall be required in conformity with Agreement Accounting Principles shall have been made therefor.

• Conduct of Third Party Claims If the matter or circumstance that may give rise to a Claim other than a Tax Claim is a result of or in connection with a claim by a third party (a “Third Party Claim”) then: 11.4.1 the Purchaser shall, to the extent reasonably practicable and subject to Applicable Law, consult with the Seller in relation to the conduct of the Third Party Claim and shall take reasonable account of the views of the Seller before taking any action in relation to the Third Party Claim; 11.4.2 no admissions in relation to the Third Party Claim shall be made by or on behalf of the Purchaser or any member of the Purchaser’s Group and the Third Party Claim shall not be compromised, disposed of or settled without the written consent of the Seller, such consent not to be unreasonably withheld or delayed; 11.4.3 subject to the Seller indemnifying the Purchaser or member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred thereby, the Purchaser shall, or the Purchaser shall procure that the members of the Purchaser’s Group shall, take such action as the Seller may reasonably request to avoid, dispute, deny, defend, resist, appeal, compromise or contest the Third Party Claim; 11.4.4 the Seller shall, subject in each case to being paid all reasonable out-of-pocket costs and expenses: (i) make available to the Purchaser and the relevant Group Company such persons and all such information as the Purchaser may reasonably request for assessing, contesting, disputing, defending, compromising or appealing the Third Party Claim; and (ii) shall give the Purchaser and the relevant Group Company reasonable access to its premises and to its books and records for such purpose during normal business hours on any Business Day following reasonable notice being given to the Seller; 11.4.5 subject to 11.4.3, the Seller shall be entitled at its own expense and in its absolute discretion, by notice in writing to the Purchaser, to assume conduct of any Third Party Claim and to have the conduct of any related proceedings, negotiations or appeals; 11.4.6 if the Seller sends a notice to the Purchaser pursuant to Clause 11.4.5 and until such time as any final compromise, agreement, expert determination or non-appealable decision of a court or tribunal of competent jurisdiction is made in respect of that Third Party Claim or that Third Party Claim is otherwise finally disposed of: (i) the Purchaser shall, and the Purchaser shall procure that any member of the Purchaser’s Group shall: (a) give, subject to being paid all reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records (excluding, in each case, information or documents which are protected by legal professional privilege but including, in each case, information or documents that are subject to common interest privilege), as the Seller may reasonably request, including instructing such professional or legal advisers as the Seller may nominate to act on behalf of the Purchaser or other member of the Purchaser’s Group concerned but in accordance with the Seller’s instructions, provided that the appointment of such adviser or advisers shall have been approved in writing by the Purchaser (such approval not to be unreasonably withheld, conditioned or delayed); and (b) not make any admission of liability, agreement or compromise in relation to that Third Party Claim without the prior written approval of the Seller (such approval not to be unreasonably withheld, conditioned or delayed); (ii) the Seller shall: (a) consult with the Purchaser and take reasonable account of the views of the Purchaser before taking any action in relation to the Third Party Claim; (b) without prejudice to its ability to defend the Third Party Claim, conduct the Third Party Claim with a view to minimising any material harm to the goodwill and reputation of the Wider Group or the Purchaser’s Group; (c) keep the Purchaser informed of all relevant matters relating to the Third Party Claim and shall promptly forward or procure to be forwarded to the Purchaser copies of all correspondence and other written communications with such other information, including non-written records (except information or documents which are protected by legal professional privilege), relating to the Third Party Claim; (d) not make any admission of liability, settlement or compromise of the Third Party Claim without the written consent of the Purchaser, such consent not to be unreasonably withheld, conditioned or delayed. If the Purchaser or member of the Purchaser’s Group fails to consent to a settlement or compromise, the maximum liability of the Seller shall (without prejudice to Clause 10) not exceed the full amount of the proposed settlement or compromise and the Purchaser or member of the Purchaser’s Group shall be liable for any damages awarded in excess of the proposed settlement or compromise and costs incurred from (and including) the date the Seller notified the Purchaser of the settlement or compromise; and (e) indemnify, save as set out in Clause 11.4.6(ii)(d), the Purchaser or other member of the Purchaser’s Group concerned against all reasonable costs and expenses (including legal and professional costs and expenses) that may be incurred as a result of the Seller assuming conduct of the Third Party Claim. 11.4.7 The covenants in this Clause 11.4 may be enforced: (i) by any Group Company against the Seller; and (ii) by any member of the Seller’s Group against the Purchaser or a Group Company, under the Contracts (Rights of Third Parties) Xxx 0000. 11.4.8 The provisions of this Clause 11.4 may be varied or terminated by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by this Clause 11.4) without the consent of any Group Company.