Cooperation With Respect to Tax Matters. (a) The Buyer shall prepare and file, or cause to be prepared and filed all Tax Returns required to be filed by the Acquired Entity with respect to periods due after the Closing Date, including any Straddle Tax Returns. With respect to Straddle Tax Returns, Buyer shall provide the Stockholder Representative with an opportunity to review and comment on such Tax Returns no less than 15 days prior to the due date thereof. (b) After the Closing Date, each of the Buyer and the Surviving Corporation, on the one hand, and the Acquired Entity, on the other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation by any of them in connection with the preparation of any Tax Return or any audit of the Acquired Entity in respect of which the Buyer or the Acquired Entity, as the case may be, is responsible pursuant to this Agreement and (ii) retain, or cause to be retained, for so long as any such taxable years or audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or audits. (c) Buyer shall promptly notify the Stockholder Representative in writing upon receipt by Buyer of written notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution of any such Tax Matter, including responding to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may affect the Tax liability of Buyer, the Surviving Corporation for any period ending after the Closing Date, without the consent of the Buyer which consent will not be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representative. (d) Buyer shall represent the interests of the Acquired Entity before the relevant Taxing authority with respect to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of this Agreement with respect to such Straddle Period Tax Matter then: (A) the Stockholder Representative may participate in the defense of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter to the extent that it adversely affects the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect to the commencement, status and nature of any Straddle Period Tax Matter.
Appears in 1 contract
Samples: Merger Agreement (Advanced Na, LLC)
Cooperation With Respect to Tax Matters. (a) The Buyer Sellers and Buyers recognize that the entities listed on Schedule 6.11 (the "Cooperation Group") have joined with Merisel in filing unitary, consolidated, or combined Tax Returns. After the Closing Date (i) Merisel shall include (to the extent required by law) the taxable income or loss, and all other items, of the Cooperation Group for periods ending before or on the Closing Date, in its unitary, consolidated or combined Tax Returns, and (ii) with respect to any other Tax Returns of the Cooperation Group for any taxable period that includes but does not end on the Closing Date (the "Straddle Tax Returns"), Sellers shall prepare a schedule apportioning, on a basis consistent with the preparation of Sellers' consolidated Federal income tax return for the taxable period ending on the Closing Date, the taxable income or loss, and fileall other items, of the Cooperation Group allocable to the period up to and including the Closing Date (the "Pre-Closing Period") and the period after the Closing Date (the "Post-Closing Period") by an interim closing of the books as of the end of the day on the Closing Date.
(b) Sellers shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required or cause permitted by applicable law to be prepared filed by Latin America with respect to periods that end on or before the Closing Date, (ii) any elections related to such Tax Returns, provided, that, any such election shall be subject to the review of Buyer prior to the filing of any Tax Returns, and filed (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; further, Buyer and the Cooperation Group shall cooperate with Sellers for the purpose of making any election under applicable law. Sellers shall consult in good faith with Buyer in respect to the issues set forth in this Section 6.11(b).
(c) Buyer and the Cooperation Group shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required to be filed by the Acquired Entity Cooperation Group with respect to periods due that begin after the Closing Date, including any Straddle Tax Returns. With respect to Date and (ii) the Straddle Tax Returns, Buyer if any, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; provided, however, that (x) in the case of any Straddle Tax Return, the preparation and filing of such Return shall provide the Stockholder Representative with an opportunity be subject to review and comment on approval of Sellers, and (y) in the event that any Audit for which Buyer or the Cooperation Group is responsible pursuant to this Section 6.11(c) could reasonably be expected to result in a material increase in Tax liability for which the Sellers would be liable, Buyer shall consult in good faith with Sellers in respect of the specific issues that could give rise to such increased Tax Returns no less than 15 days prior to the due date thereofliability.
(bd) After the Closing Date, each of the Buyer and the Surviving Corporation, members of the Cooperation Group on the one hand, and the Acquired EntitySellers, on the -45- other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives representa tives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation requested by any of them in connection with the preparation of any Tax Return or any audit Audit of the Acquired Entity companies in respect of which Buyer, the Buyer members of Cooperation Group or the Acquired EntitySellers, as the case may be, is responsible pursuant to this Agreement Section 6.11(b) or (c) hereof and (ii) retain, or cause to be retained, for so long as any such taxable years or audits Audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or auditsAudits. The assistance provided for in this Section 6.11 shall include without limitation each of Buyer, the members of the Cooperation Group and Sellers (x) making their agents and employees and the agents and employees of their respective subsidiaries and affiliates available to each other on a mutually convenient basis to provide such assistance as might reasonably be expected to be of use in connection with any such Tax Returns or Audits and (y) providing, or causing to be provided, such information as might be reasonably expected to be of use in connection with any such Tax Returns or Audits, including without limitation records, returns, schedules, documents, work papers, opinions, letters or memoranda, or other relevant materials relating thereto.
(ce) Buyer Each of Buyer, the members of the Cooperation Group and Sellers, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) ten business days after the receipt by Buyer of written any notice of any inquiriesAudit, claims, assessments, audits or similar events with respect (ii) fifteen business days prior to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit the settlement or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution final determination of any such Tax Matter, including responding Audit for which it was responsible pursuant to inquiries and contesting, defending against and resolving any assessment for additional Taxes Section 6.11(b) or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may (c) hereof which could affect the Tax liability of Buyer, the Surviving Corporation such other party for any period ending after the Closing Date, without the consent of the Buyer which consent will not be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representativetaxable year.
(d) Buyer shall represent the interests of the Acquired Entity before the relevant Taxing authority with respect to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of this Agreement with respect to such Straddle Period Tax Matter then: (A) the Stockholder Representative may participate in the defense of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter to the extent that it adversely affects the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect to the commencement, status and nature of any Straddle Period Tax Matter.
Appears in 1 contract
Cooperation With Respect to Tax Matters. (a) The Buyer Seller and Purchaser recognize that the Acquired Companies have joined with Seller in filing unitary, consolidated, or combined Tax Returns. After the Closing Date (i) Seller shall include (to the extent required by law) the taxable income or loss, and all other items, of the Acquired Companies for periods ending before or on the Closing Date, in their unitary, consolidated or combined Tax Returns, and (ii) with respect to any other Tax Returns for any taxable period that includes but does not end on the Closing Date (the "Straddle Tax Returns"), Seller shall prepare a schedule allocating, on a basis consistent with the preparation of Seller's consolidated Federal income tax return for the taxable period ending on the Closing Date, the taxable income or loss, and fileall other items, of the Acquired Companies to the period commencing with the first day of the taxable period covered by such Straddle Tax Return up to and including the Closing Date (the "Pre-Closing Period") and the period commencing with the first day after the Closing Date and ending with the last day of the taxable period covered by such Straddle Tax Return (the "Post-Closing Period").
(b) Seller shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required or cause permitted by applicable law to be filed by the Acquired Companies (or by Seller on its behalf) with respect to periods that end on or before the Closing Date, (ii) any elections and/or payments related to such Tax Returns, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns. The foregoing Tax Returns shall be prepared and filed consistently with Seller's past practices. Seller shall consult in good faith with Purchaser in any audit with respect to specific issues that may reasonably be expected to materially affect Purchaser's future Tax liability ("Going Forward Tax Issues") and Seller shall consult with Purchaser and shall not settle any Going Forward Tax Issues without the consent of Purchaser, which consent shall not be unreasonably withheld. Purchaser and the Acquired Companies shall cooperate with Seller for the purpose of making any reasonable election under applicable law.
(c) Purchaser and the Acquired Companies shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required to be filed by the Acquired Entity Companies with respect to periods due that begin after the Closing Date, including any Straddle Tax Returns. With respect to Date and (ii) the Straddle Tax Returns, Buyer if any, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; provided, however, that -------- ------- (x) in the case of any Straddle Tax Return, the preparation and filing of such Tax Return shall provide the Stockholder Representative with an opportunity be subject to review and comment on approval of Seller which consents shall not be unreasonably withheld, and (y) in the event that any Audit for which Purchaser is responsible pursuant to this Section 4.7(c) could reasonably be expected to result in a material increase in Tax liability for which Seller would be responsible, Purchaser shall consult in good faith with Seller in respect of the specific issues that could give rise to such increased Tax Returns no less than 15 days prior to the due date thereofliability.
(bd) After the Closing Date, each of the Buyer Purchaser and the Surviving CorporationAcquired Companies, on the one hand, and the Acquired EntitySeller, on the other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation Companies, by any of them in connection with the preparation of any Tax Return or any audit Audit of the Acquired Entity Companies in respect of which the Buyer or Purchaser, the Acquired EntityCompanies or Seller, as the case may be, is responsible pursuant to Sections 4.7(b) or (c) of this Agreement and (ii) retain, or cause to be retained, for so long as any such taxable years or audits Audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or auditsAudits.
(ce) Buyer Each of Purchaser and the Acquired Companies, on the one hand, and Seller, on the other, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) ten business days after the receipt by Buyer of written any notice of any inquiries, claims, assessments, audits Audit or similar events with respect (ii) fifteen business days prior to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit the settlement or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution final determination of any such Tax Matter, including responding Audit for which it was responsible pursuant to inquiries and contesting, defending against and resolving any assessment for additional Taxes Section 4.7(b) or notice (c) of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may this Agreement which could affect the Tax liability of Buyer, the Surviving Corporation such other party for any period ending after the Closing Date, without the consent of the Buyer which consent will not be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representativetaxable year.
(df) Buyer shall represent Seller hereby agrees that it will not file an election pursuant to Treasury Regulation section 1.1502-20(g)(4) to reattribute any of the interests net operating losses or capital loss carry forwards of the Acquired Entity before the relevant Taxing authority with respect Companies to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period itself.
(a "Straddle Period Tax Matter"g) and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of As used in this Agreement with respect to such Straddle Period Tax Matter then: (A) the Stockholder Representative may participate in the defense of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter to the extent that it adversely affects the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect to the commencement, status and nature of any Straddle Period Tax Matter.Agreement:
Appears in 1 contract
Cooperation With Respect to Tax Matters. (a) The Buyer Sellers and Buyers recognize that the entities listed on SCHEDULE 6.11 (the "Cooperation Group") have joined with Merisel in filing unitary, consolidated, or combined Tax Returns. After the Closing Date (i) Merisel shall include (to the extent required by law) the taxable income or loss, and all other items, of the Cooperation Group for periods ending before or on the Closing Date, in its unitary, consolidated or combined Tax Returns, and (ii) with respect to any other Tax Returns of the Cooperation Group for any taxable period that includes but does not end on the Closing Date (the "Straddle Tax Returns"), Sellers shall prepare a schedule apportioning, on a basis consistent with the preparation of Sellers' consolidated Federal income tax return for the taxable period ending on the Closing Date, the taxable income or loss, and fileall other items, of the Cooperation Group allocable to the period up to and including the Closing Date (the "Pre-Closing Period") and the period after the Closing Date (the "Post-Closing Period") by an interim closing of the books as of the end of the day on the Closing Date.
(b) Sellers shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required or cause permitted by applicable law to be prepared filed by Latin America with respect to periods that end on or before the Closing Date, (ii) any elections related to such Tax Returns, provided, that, any such election shall be subject to the review of Buyer prior to the filing of any Tax Returns, and filed (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; FURTHER, Buyer and the Cooperation Group shall cooperate with Sellers for the purpose of making any election under applicable law. Sellers shall consult in good faith with Buyer in respect to the issues set forth in this Section 6.11(b).
(c) Buyer and the Cooperation Group shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required to be filed by the Acquired Entity Cooperation Group with respect to periods due that begin after the Closing Date, including any Straddle Tax Returns. With respect to Date and (ii) the Straddle Tax Returns, Buyer if any, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; PROVIDED, HOWEVER, that (x) in the case of any Straddle Tax Return, the preparation and filing of such Return shall provide the Stockholder Representative with an opportunity be subject to review and comment on approval of Sellers, and (y) in the event that any Audit for which Buyer or the Cooperation Group is responsible pursuant to this Section 6.11(c) could reasonably be expected to result in a material increase in Tax liability for which the Sellers would be liable, Buyer shall consult in good faith with Sellers in respect of the specific issues that could give rise to such increased Tax Returns no less than 15 days prior to the due date thereofliability.
(bd) After the Closing Date, each of the Buyer and the Surviving Corporation, members of the Cooperation Group on the one hand, and the Acquired EntitySellers, on the other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation requested by any of them in connection with the preparation of any Tax Return or any audit Audit of the Acquired Entity companies in respect of which Buyer, the Buyer members of Cooperation Group or the Acquired EntitySellers, as the case may be, is responsible pursuant to this Agreement Section 6.11(b) or (c) hereof and (ii) retain, or cause to be retained, for so long as any such taxable years or audits Audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or auditsAudits. The assistance provided for in this Section 6.11 shall include without limitation each of Buyer, the members of the Cooperation Group and Sellers (x) making their agents and employees and the agents and employees of their respective subsidiaries and affiliates available to each other on a mutually convenient basis to provide such assistance as might reasonably be expected to be of use in connection with any such Tax Returns or Audits and (y) providing, or causing to be provided, such information as might be reasonably expected to be of use in connection with any such Tax Returns or Audits, including without limitation records, returns, schedules, documents, work papers, opinions, letters or memoranda, or other relevant materials relating thereto.
(ce) Buyer Each of Buyer, the members of the Cooperation Group and Sellers, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) ten business days after the receipt by Buyer of written any notice of any inquiriesAudit, claims, assessments, audits or similar events with respect (ii) fifteen business days prior to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit the settlement or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution final determination of any such Tax Matter, including responding Audit for which it was responsible pursuant to inquiries and contesting, defending against and resolving any assessment for additional Taxes Section 6.11(b) or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may (c) hereof which could affect the Tax liability of Buyer, the Surviving Corporation such other party for any period ending after the Closing Date, without the consent of the Buyer which consent will not be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representativetaxable year.
(d) Buyer shall represent the interests of the Acquired Entity before the relevant Taxing authority with respect to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of this Agreement with respect to such Straddle Period Tax Matter then: (A) the Stockholder Representative may participate in the defense of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter to the extent that it adversely affects the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect to the commencement, status and nature of any Straddle Period Tax Matter.
Appears in 1 contract
Cooperation With Respect to Tax Matters. (a) The Sellers and Buyer recognize that each of the Acquired Entities has been treated for federal income Tax purposes as a "disregarded entity" or partnership. After the Closing Date (i) Sellers shall include (to the extent required by law) the taxable income or loss, and all other Tax items, of the applicable Acquired Entity for periods ending before or on the Closing Date, in its federal income and, to the extent applicable, state income Tax Returns, and (ii) with respect to any other Tax Returns for any taxable period that includes but does not end on the Closing Date (the "Straddle Tax Returns"), the liability for Taxes shall be allocated as between Sellers, on the one hand, and Buyer and the applicable Acquired Entity, on the other, pursuant to Section 5.3(f) and Section 5.3(g). Sellers shall prepare a schedule allocating, on a basis consistent with the preparation of Sellers' federal income tax return for the taxable period ending on the Closing Date, the taxable income or loss, and fileall other items, of the applicable Acquired Entity to the period commencing with the first day of the taxable period covered by such Straddle Tax Return up to and including the Closing Date (the "Pre-Closing Period") and the period commencing with the first day after the Closing Date and ending with the last day of the taxable period covered by such Straddle Tax Return (the "Post-Closing Period"). No election with regard to a Straddle Tax Return shall be made without Buyer's consent, which consent shall not be unreasonably withheld, if the effect of such election were to result in a material increase in Tax liability for which Buyer would be responsible.
(b) Seller shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required or cause permitted by applicable law to be prepared filed by the Acquired Entity (or by Sellers on its behalf) with respect to periods that end on or before the Closing Date and filed any Straddle Tax Returns, (ii) any elections related to such Tax Returns, subject to Buyer's Consent in accordance with Section 5.3(a), and (iii) any audit (including the execution of any waiver of limitation with respect to any audit) relating to any such Tax Returns; provided, however, that in the event that any audit for which Sellers are responsible pursuant to this Section 5.3(b) could reasonably be expected to result in a material increase in Tax liability for which Buyer would be responsible, Sellers shall consult in good faith with Buyer in respect of the specific issues that could give rise to such increased Tax liability.
(c) Buyer and the Acquired Entity shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required to be filed by the Acquired Entity with respect to periods due that begin after the Closing Date, Date and (ii) any audit (including the execution of any Straddle waiver of limitation with respect to any audit) relating to any such Tax Returns. With respect ; provided, however, that in the event that any audit for which Buyer is responsible pursuant to Straddle Section 5.3(c) could reasonably be expected to result in a material increase in Tax Returnsliability for which Sellers would be responsible, Buyer shall provide consult in good faith with Sellers in respect of the Stockholder Representative with an opportunity specific issues that could give rise to review and comment on such increased Tax Returns no less than 15 days prior to the due date thereofliability.
(bd) After the Closing Date, each of the Buyer and the Surviving CorporationAcquired Entity, on the one hand, and the Acquired EntitySellers, on the other, shall (i) provide, or cause to be provided, provided to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the each Acquired Entity and the Surviving Corporation Entity, by any of them in connection with the preparation of any Tax Return or any audit of the such Acquired Entity in respect of which the Buyer Buyer, such Acquired Entity or the Acquired EntityMembers, as the case may be, is responsible pursuant to Section 5.3(b) or Section 5.3(c) of this Agreement and (ii) retain, or cause to be retained, for so long as any such taxable years or audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or audits.
(ce) Buyer and the Acquired Entity, on the one hand, and Sellers, on the other, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other Party in writing upon not later than (i) ten (10) Business Days after the receipt by Buyer of written any notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit or similar event, a "Tax Matter"). At (ii) fifteen (15) Business Days prior to the option settlement or final determination of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise an audit for which it was responsible pursuant to Section 5.3(b) or other resolution Section 5.3(c) of any such Tax Matter, including responding to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may this Agreement which could affect the Tax liability of Buyer, the Surviving Corporation such other Party for any period ending after the Closing Date, without the consent of the Buyer which consent will not be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representativetaxable year.
(df) Sellers shall be liable for, shall pay to the appropriate Tax authorities, and shall hold Buyer shall represent and the interests Acquired Entity harmless against, all Taxes of the Acquired Entity that relate to (i) the taxable periods ending before or on the relevant Taxing authority with Closing Date and (ii) the Pre-Closing Period. Sellers shall be entitled to all Tax refunds (including interest) attributable to the taxable periods in respect to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required which Sellers are so obligated to indemnify Buyer pursuant and the Acquired Entity.
(g) Buyer and the Acquired Entity shall be liable for, shall pay to the terms appropriate Tax authorities, and shall hold Sellers harmless against all Taxes of this Agreement with respect the Acquired Entity that relate to such Straddle Period Tax Matter then: (Ai) the Stockholder Representative may participate in taxable periods that begin after the defense of such Straddle Period Tax Matter Closing Date and employ counsel, at its own expense, separate from counsel employed by (ii) the PostClosing Period. Buyer and the Acquired Entity shall be entitled to any Tax refund (Bincluding interest) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter attributable to the extent that it adversely affects taxable periods in respect of which Buyer and the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect Acquired Entity are so obligated to the commencement, status and nature of any Straddle Period Tax Matterindemnify Seller.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (RadNet, Inc.)
Cooperation With Respect to Tax Matters. (a) The Buyer shall prepare Seller and filePurchaser recognize that the Company has joined with Seller and certain of its subsidiaries and affiliates in filing unitary, consolidated, or cause to be prepared and filed all combined Tax Returns (as defined below). After the Closing Date (i) Seller shall include (to the extent required to be filed or permitted by law) the Acquired Entity with respect to taxable income or loss, and all other items, of the Company for periods due after ending before or on the Closing Date, including in its unitary, consolidated or combined Tax Returns, and (ii) with respect to any other Tax Returns for any taxable period that includes but does not end on the Closing Date (the "Straddle Tax Returns. With respect to Straddle Tax Returns"), Buyer Seller shall provide prepare a schedule (the Stockholder Representative "Apportionment Schedule") apportioning, on a basis consistent with an opportunity to review the preparation of Seller's consolidated Federal income tax return for the taxable period ending on the Closing Date, the taxable income or loss, and comment on such Tax Returns no less than 15 days prior all other items, of the Company allocable to the due date thereofperiod up to and including the Closing Date (the "Pre-Closing Period") and the period after the Closing Date (the "Post-Closing Period") by an interim closing of the books as of the end of the day on the Closing Date.
(b) After the Closing Date, each of the Buyer Purchaser and the Surviving Corporation, Company on the one hand, and the Acquired Entity, Baxter and Seller on the other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation requested by any of them in connection with the preparation of any Tax Return or any audit Audit (as defined below) of the Acquired Entity Company in respect of which the Buyer Purchaser or the Acquired EntityCompany, on the one hand, or Baxter or Seller on the other, as the case may be, is are responsible pursuant to this Agreement Section 4.6(c)-(d) hereof and (ii) retain, or cause to be retained, for so long as any such taxable years Taxable Years or audits Audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or auditsAudits. The assistance provided for in this Section 4.6 shall include without limitation each of Purchaser and the Company on the one hand, and Baxter and Seller on the other, (x) making their agents and employees and the agents and employees of their respective subsidiaries and affiliates available to each other on a mutually convenient basis to provide such assistance as might reasonably be expected to be of use in connection with any such Tax Returns or Audits and (y) providing, or causing to be provided, such information as might reasonably be expected to be of use in connection with any such Tax Returns or Audits, including without limitation records, returns, schedules, documents, work papers, opinions, letters or memoranda, or other relevant materials relating thereto.
(c) Buyer Seller shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required or permitted by applicable law to be filed by the Company (or by Seller on its behalf) with respect to periods that end no earlier than October 1, 1994 and no later than the Closing Date, (ii) any Tax Return in which the Company has joined with Seller in the filing of such return on a unitary, consolidated, or combined basis, (iii) any elections related to such Tax Returns referred to in (i) and (ii) immediately above, and (iv) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; FURTHER, Purchaser and the Company shall cooperate with Baxter and Seller for the purpose of making any election under applicable law including, an election to permit the Company to file any short period Tax Return for the taxable period ending on the Closing Date and an election under Treasury Regulation Section 1.1504-20(g) of the Code. Purchaser shall be responsible for, and shall have ultimate discretion with respect to, any Audit of the Company for any taxable period ending on or prior to September 30, 1994, other than an Audit of any Tax Return in which the Company has joined with Seller in the filing of such returns on a unitary, consolidated, or combined basis. In the event that any Audit for which the Seller or Purchaser is responsible pursuant to this Section 4.2(c) could reasonably be expected to result in a material increase in Tax liability for which the other party would be liable, the party responsible for such Audit agrees to consult in good faith with the other party in respect of the specific issues that could give rise to such increased Tax liability.
(d) Purchaser and the Company shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required to be filed by the Company with respect to periods that begin after the Closing Date and (ii) the Straddle Tax Returns, if any, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns. In the case of any Straddle Tax Return, the filing of which could be reasonably expected to give rise to, or result in, a material increase in the Tax liability for which Baxter or Seller would be liable, Purchaser and the Company agree to consult in good faith with Baxter and Seller in respect of the specific matters that could give rise to such increased Tax liability.
(e) Each of Purchaser and the Company, on the one hand, and Baxter and Seller, on the other shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) five business days after the receipt by Buyer of written any notice of any inquiries, claims, assessments, audits Audit or similar events with respect (ii) ten business days prior to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit the settlement or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution final determination of any such Tax Matter, including responding Audit for which it was responsible pursuant to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may Section 4.6(c)-(d) hereof which could affect the Tax liability of Buyer, the Surviving Corporation such other party for any taxable year.
(f) To the extent that Seller and the Company file unitary, consolidated, or combined Tax Returns for any taxable period commencing on or after October 1, 1995, and ending after on or before the Closing Date, without the consent of the Buyer which consent will not Company shall be unreasonably withheld. The Stockholder Representative liable to Seller, and shall keep Buyer fully and make timely informed with payments to Seller in respect thereof, for Taxes in amounts equal to the commencement, status and nature amount of any Tax Matter, and Buyer shall Taxes that the Company would have the right paid to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representative.
(d) Buyer shall represent the interests of the Acquired Entity before the relevant Taxing Tax authority with respect to any inquiry, claim, assessment, audit, or similar event relating to had the Company filed Tax Returns for such period on a Straddle Period stand-alone basis (a the "Straddle Period Stand Alone Tax MatterLiability") and shall control ). Upon the defense, compromise or other resolution filing of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contestingwith the relevant Tax authority, defending against and resolving any assessment for additional Taxes the Company shall promptly make a final payment to Seller (or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required Seller shall promptly refund to indemnify Buyer pursuant Company) an amount equal to the terms difference between (i) the Stand Alone Tax Liability of this Agreement with the Company, as reasonably calculated by Seller, and (ii) the aggregate amount of payments previously made by the Company to Seller in respect to such Straddle Period Tax Matter then: thereof (the "True-up Amount"). Interest shall accrue at the annual rate of 8% in respect of any True-up Amount that remains unpaid (A) the Stockholder Representative may participate in the defense case of an amount due from Purchaser, 15 days after the presentation of written notice to Purchaser of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer True-up Amount and (B) neither Buyer nor in the Surviving Corporation shall enter into any settlement case of or otherwise compromise any such Straddle Period Tax Matter to Seller, 15 days after the extent that it adversely affects filing of the Tax liability of Return giving rise to such True-up Amount.
(g) As used in this Agreement:
(i) the Stockholders without the prior written consent of the Stockholder Representativeterm "Tax" or "Taxes" shall include all Federal, which consent shall not be unreasonably withheld state, local and foreign taxes, assessments, and governmental charges (whether imposed directly or delayed. Buyer shall keep the Stockholder Representative fully through withholdings), including any interest, penalties and timely informed with respect additions to the commencement, status and nature of any Straddle Period Tax Matter.Taxes applicable thereto;
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Cooperation With Respect to Tax Matters. (a) The Buyer shall prepare Prandium, Seller and filePurchaser recognize that the Acquired Companies have joined with Prandium and Seller in filing unitary, consolidated, or cause combined Tax Returns as members of a unitary, consolidated or combined group, as applicable (the "Prandium Consolidated Group"). After the Closing Date, Prandium and Seller shall include (to the extent required by law) the taxable income or loss, and all other items, of the Acquired Companies for periods ending before or on the Closing Date, in their unitary, consolidated or combined Tax Returns and shall not cease to include the Acquired Companies in such Tax Returns for any tax year that ends on or before or that includes the Closing Date.
(b) Seller shall be prepared responsible for, and filed shall have ultimate discretion with respect to, (i) the timely filing of all Tax Returns (and payment of Tax with respect thereto) required or permitted by applicable law to be filed by the Acquired Companies (or by Seller on their behalf) with respect to periods that end on or before the Closing Date, (ii) any elections related to such Tax Returns (other than Section 338(h)(10) Elections, the rights and obligations of the parties hereto of which are set forth in Section 4.7), and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; provided, however, that in the event that any Audit for which Prandium or Seller is responsible pursuant to this Section 4.8(b) could reasonably be expected to result in a material increase in Tax liability for which Purchaser would be responsible, Seller shall consult in good faith with Purchaser in respect of the specific issues that could give rise to such increased Tax liability. Purchaser and the Acquired Companies shall cooperate with Seller for the purpose of making any Tax election under applicable law that would not have a Material Adverse Effect, including any election to permit Seller to file any short period Tax Return for the taxable period ending on the Closing Date.
(c) Purchaser and the Acquired Companies shall be responsible for, and shall have ultimate discretion with respect to, (i) the timely filing of all Tax Returns (and payment of Tax with respect thereto) required to be filed by the Acquired Entity Companies with respect to periods due that begin after the Closing DateDate and (ii) the Straddle Tax Returns (as defined below), if any, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; provided, however, that (x) in the case of any Straddle Tax Returns. With respect to Straddle Tax ReturnsReturn, Buyer the preparation and filing of such Return shall provide the Stockholder Representative with an opportunity be subject to review and comment approval of Seller, which approval shall not be unreasonably withheld, and (y) in the event that any Audit for which Purchaser is responsible pursuant to this Section 4.8(c) could reasonably be expected to result in a material increase in Tax liability for which Prandium or Seller would be responsible, Purchaser shall consult in good faith with Prandium or Seller in respect of the specific issues that could give rise to such increased Tax liability. A "Straddle Tax Return" is a Tax Return for any taxable period that includes but does not end on such the Closing Date. For purposes of any Straddle Tax Returns no less than 15 days prior Return, the allocation of Taxes of the Acquired Companies between the portion of the taxable period up to and including the due date thereofClosing Date (the "Pre-Closing Period") and the portion of the taxable period commencing with the first day after the Closing Date (the "Post- Closing Period") shall, with respect to income, sales, use, payroll and similar Taxes, be based on the operations of the Acquired Companies as if their books were closed at the end of the day of the Closing Date. The parties agree that real and personal property and similar Taxes shall be apportioned on a daily pro rata basis.
(bd) After the Closing Date, each of the Buyer Purchaser and the Surviving CorporationAcquired Companies, on the one hand, and the Acquired EntityPrandium and Seller, on the other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation Companies, by any of them in connection with the preparation of any Tax Return or any audit Audit of the Acquired Entity Companies in respect of which the Buyer or Purchaser, the Acquired EntityCompanies or Prandium or Seller, as the case may be, is responsible pursuant to Sections 4.8(b) or (c) of this Agreement and (ii) retain, or cause to be retained, for so long as any such taxable years or audits Audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or auditsAudits.
(ce) Buyer Each of Purchaser and the Acquired Companies, on the one hand, and Prandium and Seller, on the other, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) ten business days after the receipt by Buyer of written any notice of any inquiries, claims, assessments, audits Audit or similar events with respect (ii) fifteen business days prior to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit the settlement or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution final determination of any such Tax Matter, including responding Audit for which it was responsible pursuant to inquiries and contesting, defending against and resolving any assessment for additional Taxes Section 4.8(b) or notice (c) of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may this Agreement which could affect the Tax liability of Buyer, the Surviving Corporation such other party for any period ending after the Closing Date, without the consent of the Buyer which consent will not be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representativetaxable year.
(df) Buyer shall represent the interests of the Acquired Entity before the relevant Taxing authority with respect to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of As used in this Agreement with respect to such Straddle Period Tax Matter then: (A) the Stockholder Representative may participate in the defense of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter to the extent that it adversely affects the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect to the commencement, status and nature of any Straddle Period Tax Matter.Agreement:
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Cooperation With Respect to Tax Matters. (a) The Buyer shall prepare and file, or cause to be prepared and filed all Tax Returns required to be filed by the Acquired Entity with respect to periods due after the Closing Date, including any Straddle Tax Returns. With respect to Straddle Tax Returns, Buyer shall provide the Stockholder Representative with an opportunity to review and comment on such Tax Returns no less than 15 days prior to the due date thereof.
(b) After the Closing Date, each Each of the Buyer and the Surviving CorporationBuyer, on the one hand, and the Acquired EntityParent, on the other, shall (i) provide, or cause to be provided, to each other's ’s respective subsidiariesSubsidiaries, officers, employees, representatives Representatives and affiliatesAffiliates, such assistance as may reasonably be requested, including making available employees and the books and records of Seller relating to the Acquired Entity and the Surviving Corporation Purchased Business, by any of them in connection with the preparation of any Tax Return or any audit of the Acquired Entity Seller in respect of which the Buyer Buyer, Seller or the Acquired EntityParent, as the case may be, is responsible pursuant to this Agreement and (ii) retain, or cause to be retained, for so long as any such taxable years or audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or audits.
(cb) Buyer Each of Buyer, on the one hand, and Parent, on the other, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) ten Business Days after the receipt by Buyer of written any notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes relating to a Pre-Closing Period (any such inquiry, claim, assessment, audit or similar event, a "Tax Matter"). At the option of the Stockholder Representative, the Stockholder Representative, at its sole expense, shall control the defense, compromise or other resolution of any such Tax Matter, including responding to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matter; provided, however, that the Stockholder Representative may not enter into any settlement of or otherwise compromise any Tax Matter that affects or may which could affect the Tax liability Liability of Buyer, the Surviving Corporation other Party for any period ending taxable year or (ii) fifteen Business Days prior to the settlement or final determination of any audit for which it was responsible which could affect the Tax Liability of such other Party for any taxable year.
(c) All personal and real property Taxes imposed on the Purchased Business shall be prorated and apportioned between Buyer and the Seller Parties as of the end of the day on which the Purchased Business or any portion thereof is sold to Buyer hereunder (the “Cut-Off Time”). Parent shall be responsible for the same up to the Cut-Off Time and Buyer shall be responsible for the same from and after the Cut-Off Time. If the actual amount to be prorated is not known on the applicable Closing Date, without then the consent proration shall be made on the basis of the Buyer which consent will not best evidence then available; and when actual figures are later received, a cash settlement shall be unreasonably withheld. The Stockholder Representative shall keep Buyer fully made between the Seller Parties and timely informed with respect to the commencement, status and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder RepresentativeBuyer.
(d) The Seller Parties shall be liable for, shall pay to the appropriate Tax authorities, and shall hold Buyer shall represent harmless against, Taxes of, imposed on, or related to the interests of the Acquired Entity before the relevant Taxing authority Purchased Business or any portion thereof that is sold to Buyer hereunder with respect to the taxable periods or portions thereof ending before or on the Cut-Off Time. Transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any inquirypenalties and interest) incurred in connection with the Transactions shall be paid by the Seller Parties. The Seller Parties shall, claimat their own expense, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing file all necessary Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of this Agreement documentation with respect to all such Straddle Period Taxes and fees. The Seller Parties shall be entitled to all Tax Matter then: refunds (Aincluding interest) attributable to the Stockholder Representative may participate taxable periods in respect of which Seller is so obligated to indemnify the defense of such Straddle Period Tax Matter and employ counselBuyer, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter except to the extent that it adversely affects the Tax liability Buyer has paid Seller in respect of the Stockholders without Taxes which are the prior written consent subject of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. such refunds.
(e) Buyer shall keep be liable for, shall pay to the Stockholder Representative fully appropriate Tax authorities, and timely informed shall indemnify and hold the Seller Parties harmless against all Taxes of, imposed on or related to the Purchased Business or any portion thereof that is sold to Buyer hereunder with respect to the commencement, status taxable periods or portions thereof that begin after the applicable Cut-Off Time. Buyer shall be entitled to any Tax refund (including interest) attributable to the taxable periods in respect of which Buyer is so obligated to indemnify and nature of any Straddle Period Tax Matterhold harmless the Seller Parties.
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Samples: Asset Purchase Agreement (Insight Health Services Holdings Corp)
Cooperation With Respect to Tax Matters. (a) The Buyer Seller and Purchaser recognize that the Acquired Companies have joined with Seller in filing unitary, consolidated, or combined Tax Returns. After the Closing Date (i) Seller shall include (to the extent required by law) the taxable income or loss, and all other items, of the Acquired Companies for tax years ending before or on the Closing Date, in their unitary, consolidated or combined Tax Returns, and (ii) with respect to any other Tax Returns for any taxable period that includes but does not end on the Closing Date (the "Straddle Tax Returns"), Seller shall prepare a schedule allocating, on a basis consistent with the preparation of Seller's consolidated Federal income tax return for the taxable period ending on the Closing Date, the taxable income or loss, and fileall other items, of the Acquired Companies to the period commencing with the first day of the taxable period covered by such Straddle Tax Return up to and including the Closing Date (the "Pre-Closing Period") and the period commencing with the first day after the Closing Date and ending with the last day of the taxable period covered by such Straddle Tax Return (the "Post-Closing Period").
(b) Seller shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required or cause permitted by applicable law to be prepared filed by the Acquired Companies (or by Seller on its behalf) with respect to periods that end on or before the Closing Date, (ii) any elections and/or payments related to such Tax Returns, and filed (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns. Purchaser and the Acquired Companies shall cooperate with Seller for the purpose of making any election under applicable law.
(c) Purchaser and the Acquired Companies shall be responsible for, and shall have ultimate discretion with respect to, (i) all Tax Returns required to be filed by the Acquired Entity Companies with respect to periods due that begin after the Closing Date, including any Straddle Tax Returns. With respect to (ii) the Straddle Tax Returns, Buyer if any, and (iii) any Audit (including the execution of any waiver of limitation with respect to any Audit) relating to any such Tax Returns; provided, however, that -------- ------- (x) in the case of any Straddle Tax Return, the preparation and filing of such Tax Return shall provide the Stockholder Representative with an opportunity be subject to review and comment on approval of Seller, and (y) in the event that any Audit for which Purchaser is responsible pursuant to this Section 4.7(c) could reasonably be expected to result in a material increase in Tax liability for which Seller would be responsible, Purchaser shall consult in good faith with Seller in respect of the specific issues that could give rise to such increased Tax Returns no less than 15 days prior to the due date thereofliability.
(bd) After the Closing Date, each of the Buyer Purchaser and the Surviving CorporationAcquired Companies, on the one hand, and the Acquired EntitySeller, on the other, shall (i) provide, or cause to be provided, to each other's respective subsidiaries, officers, employees, representatives and affiliates, such assistance as may reasonably be requested, including making available employees and the books and records of the Acquired Entity and the Surviving Corporation Companies, by any of them in connection with the preparation of any Tax Return or any audit Audit of the Acquired Entity Companies in respect of which the Buyer or Purchaser, the Acquired EntityCompanies or Seller, as the case may be, is responsible pursuant to Sections 4.7(b) or (c) of this Agreement and (ii) retain, or cause to be retained, for so long as any such taxable years or audits Audits shall remain open for adjustments, any records or information which may be relevant to any such Tax Returns or auditsAudits.
(ce) Buyer Each of Purchaser and the Acquired Companies, on the one hand, and Seller, on the other hand, shall promptly inform, keep regularly apprised of the progress with respect to, and notify the Stockholder Representative other party in writing upon not later than (i) ten business days after the receipt by Buyer of written any notice of any inquiriesAudit or (ii) fifteen business days prior to the settlement or final determination of any Audit for which it was responsible pursuant to Section 4.7(b) or (c) of this Agreement which could affect the Tax liability of such other party for any taxable year.
(f) Unless Purchaser determines to assign its rights, claims, assessments, audits or similar events with respect to Taxes relating interests and obligations to a Pre-limited liability company pursuant to Section 9.9 hereof, each of Purchaser and the Acquired Companies, on the one hand, and Seller, on the other hand, shall cooperate, if requested by Purchaser, in connection with the filing of a Section 338(h)(10) election for Federal income tax purposes, and similar elections for state income purposes in the States of California, Virginia and Maryland as of the Closing Period Date (any such inquiry, claim, assessment, audit or similar event, a the "Tax MatterSection 338 Election").
(g) If a Section 338 Election is made, the Purchase Price shall be increased by the "Section 338 Incremental Tax Liability" (as described below). At For purposes of this Agreement, "Section 338 Incremental Tax Liability" shall mean the option excess of (x) the Tax liability incurred by Seller and its Affiliates (including any Tax liability of the Stockholder Representative, Acquired Companies to the Stockholder Representative, at extent that Seller or its sole expense, shall control Affiliates are directly or indirectly liable) in connection with the defense, compromise consummation of the Sale and the making of the Section 338 Election over (y) the Tax liability that would have been incurred by Seller and its Affiliates (including any Tax liability of the Acquired Companies to the extent that Seller or other resolution its Affiliates are directly or indirectly liable) in connection with the consummation of any such Tax Matter, including responding to inquiries and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, such Tax Matterthe Sale assuming that no Section 338 Election would be made; provided, however, that the Stockholder Representative may Section 338 Incremental Tax Liability shall not enter into any settlement of or otherwise compromise include any Tax Matter that affects liability arising from a reduction of, or may affect the disallowance of the use of, Tax liability Attributes of BuyerSeller or its Affiliates pursuant to an Audit or the filing of any amended Tax Return by Seller or its Affiliates. If a Section 338 Election is made, the Surviving Corporation for any period ending after Seller shall, prior to the Closing Date, without the consent provide to Purchaser a calculation of the Buyer Section 338 Incremental Tax Liability which consent will not calculation shall be unreasonably withheld. The Stockholder Representative shall keep Buyer fully and timely informed with respect subject to the commencement, status timely review and nature of any Tax Matter, and Buyer shall have the right to participate in the defense of such Tax Matter and in connection therewith employ counsel, at its own expense, separate from counsel employed by the Stockholder Representative.
(d) Buyer shall represent the interests reasonable approval of the Acquired Entity before the relevant Taxing authority with respect to any inquiry, claim, assessment, audit, or similar event relating to a Straddle Period (a "Straddle Period Tax Matter") and shall control the defense, compromise or other resolution of any such Straddle Period Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of or relating to, such Straddle Period Tax Matter. If the Stockholders would be required to indemnify Buyer pursuant to the terms of this Agreement with respect to such Straddle Period Tax Matter then: (A) the Stockholder Representative may participate in the defense of such Straddle Period Tax Matter and employ counsel, at its own expense, separate from counsel employed by Buyer and (B) neither Buyer nor the Surviving Corporation shall enter into any settlement of or otherwise compromise any such Straddle Period Tax Matter to the extent that it adversely affects the Tax liability of the Stockholders without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld or delayed. Buyer shall keep the Stockholder Representative fully and timely informed with respect to the commencement, status and nature of any Straddle Period Tax MatterPurchaser.
Appears in 1 contract
