Common use of Defense of Tax Claims Clause in Contracts

Defense of Tax Claims. (a) If a notice of deficiency, proposed adjustment, adjustment, assessment, audit, examination, administrative or court proceeding, suit, dispute or other claim is delivered, sent, commenced or initiated to or against the Company by any Taxing Authority with respect to Taxes (including, but not limited to, Taxes and amounts relating to the loss of Tax benefits described in Section 8.02) for which Sellers are obligated, jointly and severally, to indemnify the Investor’s Indemnitees (a “Tax Claim”), the Company shall promptly notify Sellers’ Representative and Investor in writing of the Tax Claim, unless Sellers’ Representative or any Seller has knowledge of such Tax Claim, in which event the Company shall be under no obligation to notify Sellers’ Representative of such Tax Claim. (b) Except as otherwise provided in this Section 8.03, Investor shall be solely responsible for controlling the defense of such Tax Claim. (c) If such Tax Claim relates to a pre-Closing Tax period or to the election or termination of the Company’s S Corporation status during a pre-Closing Tax period, Sellers’ Representative shall control, defend, settle, compromise, or contest such Tax Claim; provided, however, that, notwithstanding anything to the contrary set forth herein, (i) Sellers’ Representative shall keep Investor and the Company fully informed of any proceedings, events and developments related to or in connection with such Tax Claim; (ii) Investor and the Company shall be entitled to receive copies of all correspondence and documents related to such Tax Claim; (iii) Sellers’ Representative shall consult with Investor and shall not enter into any settlement with respect to any such Tax Claim without Investor’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned; and (iv) Investor and/or the Company shall have the right to participate in the defense of such Tax Claim, each at its own cost and expense. Notwithstanding the foregoing, in the event Sellers’ Representative wishes to settle a Tax Claim and the Company and/or Investor withholds its consent, Investor or the Company shall take over control of the Tax Claim at its own cost and expense and, to the extent that the amount of the Tax Claim ultimately is determined to be greater than the amount for which Sellers’ Representative was willing to settle, Investor or the Company, as the case may be, shall bear such excess cost, including interest and/or penalties accruing on or after the date Investor and/or the Company advised the Sellers’ Representative that it was withholding consent to the settlement. Except as provided in the preceding sentence, the costs and expenses (including the cost of counsel) incurred by Sellers’ Representative in contesting any such Tax Claim shall be born by Sellers. Investor’s Indemnitees shall cooperate with Sellers’ Representative in connection with any such Tax Claim.

Defense of Tax Claims. (a) If a Notwithstanding the foregoing terms of Section 9.2 to the contrary, in the event that any Governmental Authority informs Shareholder, on the one hand, or Purchaser, Holdings, the Company or any of the Subsidiaries, on the other hand, of any notice of deficiency, a proposed adjustment, adjustment, assessment, audit, examination, administrative or court proceeding, suit, dispute audit or other claim is delivereddispute concerning an amount of Taxes with respect to which the other Party may incur liability hereunder, sent, commenced the Party so informed shall promptly notify the other Party of such matter. Such notice shall contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice or initiated to or against the Company by other documents received from any Taxing Governmental Authority with respect to Taxes (including, but not limited to, Taxes and amounts relating such matter. If an Indemnified Party has actual knowledge of an asserted Tax liability with respect to the loss of Tax benefits described in Section 8.02) a matter for which Sellers are obligatedit may be indemnified hereunder and such Party fails to provide the Indemnifying Party prompt notice of such asserted Tax liability, jointly and severallythen (i) if the Indemnifying Party is entirely foreclosed from contesting the asserted Tax liability solely as a result of the failure to give prompt notice, the Indemnifying Party shall have no obligation to indemnify the Investor’s Indemnitees Indemnified Party for Taxes or Losses arising out of such asserted Tax liability, and (a ii) if the Indemnifying Party is not entirely foreclosed from contesting the asserted Tax liability, but such failure to provide prompt notice results in any incremental Losses or any incremental monetary detriment to the Indemnifying Party, then any amount which the Indemnifying Party is otherwise obligated to pay the Indemnified Party pursuant to this Agreement shall be reduced by the amount of such incremental detriment. (b) Shareholder shall control any audits, disputes, administrative, judicial or other proceedings related to Taxes (“Tax ClaimClaims”)) (i) which relate to Income Taxes for periods ending on or prior to September 30, the Company shall promptly notify Sellers’ Representative 2005, (ii) which relate to Non-Income Taxes for periods ending on or prior to May 25, 2006 or (iii) with respect to which Shareholder is required to indemnify Purchaser hereunder, and Investor in writing of the Tax Claimprovided that, unless Sellers’ Representative or any Seller has knowledge prior to accepting control of such Tax Claim, the Shareholder agrees in which writing that they are required to indemnify Purchaser with respect to such Tax Claims. Purchaser or Holdings shall control any other Tax Claims. Subject to the preceding sentence, in the event the Company that an adverse determination may result in each Party having a responsibility for any amount of Tax under this Article IX, each Party shall be under no obligation entitled to notify Sellers’ Representative fully participate in that portion of such the proceeding relating to the Taxes for which it may incur liability hereunder. Purchaser or Holdings shall be entitled to participate in all Tax Claim. (b) Except Claims at its expense and bear any incremental costs incurred as otherwise provided in a result of its participation. For purposes of this Section 8.039.3(b), Investor the term “participate” shall be solely responsible include (i) participation in conferences, meetings or Proceedings with any Governmental Authority, the subject matter of which includes an item for controlling which such Party may have liability hereunder, (ii) participation in appearances before any court or tribunal, the defense subject matter of such Tax Claimwhich includes an item for which a Party may have liability hereunder, and (iii) with respect to matters described in the preceding clauses (i) and (ii), participation in the submission and determination of the content of the documentation, protests, memoranda of fact and law, and briefs, and the conduct of oral arguments and presentations. (c) If such Tax Claim relates to a pre-Closing Tax period Shareholder and Purchaser or to the election or termination of the Company’s S Corporation status during a pre-Closing Tax period, Sellers’ Representative shall control, defend, settle, compromise, or contest such Tax Claim; provided, however, that, notwithstanding anything to the contrary set forth herein, (i) Sellers’ Representative shall keep Investor and the Company fully informed of any proceedings, events and developments related to or in connection with such Tax Claim; (ii) Investor and the Company shall be entitled to receive copies of all correspondence and documents related to such Tax Claim; (iii) Sellers’ Representative shall consult with Investor and Holdings shall not enter into agree to settle any settlement Tax liability or compromise any claim with respect to any Taxes which settlement or compromise would reasonably be expected to materially adversely affect the liability for Taxes hereunder (or right to Tax benefit) of the other Party, without such Tax Claim without Investorother Party’s prior written consent, which consent shall not be unreasonably withheld, delayed withheld or conditioned; and (iv) Investor and/or the Company shall have the right to participate in the defense of such Tax Claim, each at its own cost and expense. Notwithstanding the foregoing, in the event Sellers’ Representative wishes to settle a Tax Claim and the Company and/or Investor withholds its consent, Investor or the Company shall take over control of the Tax Claim at its own cost and expense and, to the extent that the amount of the Tax Claim ultimately is determined to be greater than the amount for which Sellers’ Representative was willing to settle, Investor or the Company, as the case may be, shall bear such excess cost, including interest and/or penalties accruing on or after the date Investor and/or the Company advised the Sellers’ Representative that it was withholding consent to the settlement. Except as provided in the preceding sentence, the costs and expenses (including the cost of counsel) incurred by Sellers’ Representative in contesting any such Tax Claim shall be born by Sellers. Investor’s Indemnitees shall cooperate with Sellers’ Representative in connection with any such Tax Claimdelayed.

Defense of Tax Claims. (a) If a notice Seller shall have the exclusive right to represent the interests of deficiency, proposed adjustment, adjustment, assessment, audit, examination, administrative or court proceeding, suit, dispute or other claim is delivered, sent, commenced or initiated to or against the Company by any Taxing Authority with respect to any Tax Claim relating solely to Taxes (including, but not limited to, Taxes and amounts relating to the loss of Tax benefits described in Section 8.02) for which Sellers are obligated, jointly and severally, to indemnify the Investor’s Indemnitees (a “Tax Claim”), the Company shall promptly notify Sellers’ Representative for any taxable period ending on or before the Closing Date and Investor in writing to employ counsel of the Tax Claim, unless Sellers’ Representative or any Seller has knowledge of such Tax Claim, in which event the Company shall be under no obligation to notify Sellers’ Representative of such Tax Claim. (b) Except as otherwise provided in this Section 8.03, Investor shall be solely responsible for controlling the defense of such Tax Claim. (c) If such Tax Claim relates to a pre-Closing Tax period or to the election or termination of the Company’s S Corporation status during a pre-Closing Tax period, Sellers’ Representative shall control, defend, settle, compromise, or contest such Tax Claim; provided, however, that, notwithstanding anything to the contrary set forth herein, (i) Sellers’ Representative shall keep Investor and the Company fully informed of any proceedings, events and developments related to or its choice in connection with such Tax Claim; , if Seller provides Buyer with written notice of (i) Seller shall keep Buyer fully informed regarding the progress and substantive aspects of such Tax Claim and shall promptly respond to any reasonable inquiry by Buyer with respect thereto, (ii) Investor and the Company Buyer shall be entitled to receive copies of all correspondence and documents related to participate (at its own expense) in such Tax Claim; Claim and (iii) Sellers’ Representative shall consult with Investor and Seller shall not enter into any settlement with respect to any compromise, settle or otherwise resolve such Tax Claim without Investorobtaining Buyer’s prior written consent, which consent shall not be unreasonably withheld, delayed conditioned or conditioned; delayed. If Seller does not elect to control a Tax Claim that relates solely to a taxable period that ends on or before the Closing Date, Buyer shall be entitled to control such Tax Claim. Notwithstanding the foregoing, at any time that the amount in dispute in a Tax Claim that relates solely to a taxable period that ends on or before the Closing Date, measured by giving effect to any interest, penalties, additions to tax or other amounts that may be imposed by any Governmental Authority, is greater than 200% of the remaining portion of the Indemnification Escrow Amount that is unencumbered by claims for indemnification, Buyer (and (ivnot Seller) Investor and/or the Company shall have the right to control such Tax Claim; provided that (A) Buyer shall keep Seller informed regarding the progress of such Tax Claim and shall promptly respond to any reasonable inquiry by Seller with respect thereto (B) Seller shall be entitled to participate (at its own expense) in such Tax Claim and (C) at any time a positive Indemnification Escrow Amount (net of the amount of other pending claims for indemnification) remains in the defense Escrow Account and it is reasonably possible that Seller will be liable under this Agreement for any Taxes arising out of such Tax Claim, each at its own cost and expense. Notwithstanding the foregoing, in the event Sellers’ Representative wishes to Buyer shall not compromise or settle a such Tax Claim and the Company and/or Investor withholds its without obtaining Seller’s prior written consent, Investor which consent shall not be unreasonably withheld, conditioned or the Company shall take over control of the delayed. With respect to any Tax Claim that does not relate solely to a taxable period that ends on or before the Closing Date, Buyer shall have the right to control the conduct of such Tax Claim, provided that (x) Buyer shall keep Seller informed regarding the progress of such Tax Claim with respect to issues in such Tax Claim for which Seller will be liable under this Agreement and shall promptly respond to any reasonable inquiry by Seller with respect thereto and (y) at its own cost and expense and, to the extent that any time a positive Indemnification Escrow Amount (net of the amount of the Tax Claim ultimately is determined to be greater than the amount other pending claims for which Sellers’ Representative was willing to settle, Investor or the Company, as the case may be, shall bear such excess cost, including interest and/or penalties accruing on or after the date Investor and/or the Company advised the Sellers’ Representative that it was withholding consent to the settlement. Except as provided indemnification) remains in the preceding sentenceEscrow Account and it is reasonably possible that the Sellers will be liable under this Agreement for a material amount of Taxes arising out of such Tax Claim, the costs and expenses (including the cost of counsel) incurred by Sellers’ Representative Buyer shall not compromise, settle or otherwise resolve any issues in contesting any such Tax Claim for which Seller will be liable under this Agreement without obtaining Seller’s prior written consent, which consent shall not be born by Sellersunreasonably withheld, conditioned or delayed. Investor’s Indemnitees In the event of any conflict between this Section 7.8(d) and Section 7.7, this Section 7.8(d) shall cooperate with Sellers’ Representative in connection with any such Tax Claimcontrol.

Defense of Tax Claims. (a) If The Indemnified Party shall take such action in contesting such claim or demand as the Indemnifying Parties may request, including appeals, provided the Indemnified Party has not received a notice written opinion of deficiencyindependent tax counsel, proposed adjustmentselected by the Indemnified Party and reasonably satisfactory to the Indemnifying Party that there is no reasonable basis for the contest and the Indemnifying Party agrees to pay the Indemnified Party's costs of pursuing the contest. The Indemnifying Parties may, adjustmentat their own expense, assessment, audit, examination, administrative or court proceedingelect to assume the defense of any claim, suit, dispute action, litigation or other claim is delivered, sent, commenced or initiated to or proceeding (including any Tax audit) for Taxes in respect of which indemnity may be sought against the Company by any Taxing Authority with respect Indemnifying Parties pursuant to Taxes this Agreement (includingcollectively, but not limited to, Taxes and amounts relating to the loss of Tax benefits described in Section 8.02) for which Sellers are obligated, jointly and severally, to indemnify the Investor’s Indemnitees (a “"Tax Claim”)"): and, as between the Indemnified Party and the Indemnifying Parties, the Company Indemnifying Parties shall promptly notify Sellers’ Representative determine whether and Investor in writing of the Tax Claim, unless Sellers’ Representative or any Seller has knowledge of what manner to defend such Tax Claim, in which event the Company Claim and shall be under no obligation to notify Sellers’ Representative otherwise control all aspects of such Tax Claim. (b) Except as otherwise provided in this Section 8.03, Investor shall be solely responsible for controlling the any defense of such Tax Claim. (c) If such Tax Claim relates to a pre-Closing Tax period or to the election or termination of the Company’s S Corporation status during a pre-Closing Tax period, Sellers’ Representative shall control, defend, settle, compromise, or contest such Tax Claim; provided, however, provided that, notwithstanding anything if the Indemnifying Party elects to the contrary set forth herein, (i) Sellers’ Representative shall keep Investor and the Company fully informed of any proceedings, events and developments related to or in connection with such Tax Claim; (ii) Investor and the Company shall be entitled to receive copies of all correspondence and documents related to such Tax Claim; (iii) Sellers’ Representative shall consult with Investor and shall not enter into any settlement with respect to any such Tax Claim without Investor’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned; and (iv) Investor and/or the Company shall have the right to participate in assume the defense of a Tax Claim, it shall retain counsel reasonably satisfactory to the Indemnified Party; that in the event that the Indemnified Party has been advised by independent counsel that having common counsel would present a conflict of interest or preclude the Indemnified Party from making certain legal defenses, then the Indemnified Party may retain separate counsel to defend it against the Tax Claim at the Indemnifying Parties' expense. Subject to the immediately preceding sentence, if the Indemnifying Parties elect to assume the defense of or otherwise participate in any such Tax Claim, each at its own cost and expense. Notwithstanding the foregoing, Party shall (i) cooperate in the event Sellers’ Representative wishes defense or prosecution of any such Tax Claim, (ii) consult with and keep each other Party and its designated counsel reasonably informed with respect to settle such Tax Claim, (iii) fumish or cause to be fumished, records and information, or make employees available on a Tax Claim reasonable and the Company and/or Investor withholds its consentmutually convenient basis to provide information as may be reasonably requested in connection therewith, Investor or the Company and (iv) consider comments of and consult in good faith with each other Party; provided that nothing in this Section shall take over control of the Tax Claim at its own cost and expense and, obligate a Party to disclose information that is subject to the extent that the amount of the Tax Claim ultimately is determined to be greater than the amount for which Sellers’ Representative was willing to settle, Investor or the Company, as the case may be, attomey-client privilege. The Indemnified Party shall bear such excess cost, including interest and/or penalties accruing on or after the date Investor and/or the Company advised the Sellers’ Representative that it was withholding consent to the settlement. Except as provided in the preceding sentence, the costs and expenses (including the cost of counsel) incurred by Sellers’ Representative in contesting not settle any such Tax Claim shall be born by Sellers. Investor’s Indemnitees shall cooperate or consent to the entry of any judgment with Sellers’ Representative in connection with any such Tax Claimrespect to Taxes indemnified hereunder without prior written notice to and consent of the Indemnifying Parties.

Defense of Tax Claims. (a) If a notice The Parent or its Affiliates shall promptly notify the Member Representative in writing of deficiency, the commencement of any audit or examination of any Tax Return of Holdings or the Company for any Taxable year or period ending on or before the Closing Date and any other proposed change or adjustment, adjustmentclaim, assessmentdispute, auditarbitration or litigation that, examinationif sustained, administrative or court proceeding, suit, dispute or other would reasonably be expected to give rise to a claim is delivered, sent, commenced or initiated to or against for indemnification in respect of Taxes by the Company by any Taxing Authority with respect to Taxes (including, but not limited to, Taxes and amounts relating to the loss of Tax benefits described in Section 8.02) for which Sellers are obligated, jointly and severally, to indemnify the Investor’s Indemnitees Parent under this Agreement (a “Tax Claim”); provided that failure to notify the Member Representative will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the Company shall promptly notify Sellers’ extent that the Member Representative and Investor in writing or the Indemnifying Party demonstrates that the defense of the Tax Claim is prejudiced by the failure to give such notice. Such notice shall describe the asserted Tax Claim in reasonable detail and shall include copies of any notices and other documents received from any Taxing Authority in respect of any such asserted Tax Claim. The Member Representative shall have the right to control any Tax Claims in the Tax audit or examination state; provided, unless Sellers’ however, that the Member Representative shall inform the Parent of the status and progress of such Tax audit or examination and shall allow the Parent to actively participate in the audit or examination at its own expense, including allowing the Parent and its representatives a reasonable opportunity to review and comment on any Seller has knowledge legal submissions before submission or other written legal responses in connection with such audit or examination. If a Tax Claim relating solely to a Taxable year or period ending on or before the Closing Date is not settled at the Tax audit or examination stage, the Member Representative shall have the right to control any further contest of such Tax Claim, in which event and, if it exercises such right, shall bear the Company shall be under no obligation to notify Sellers’ Representative of such Tax Claim. (b) Except as otherwise provided in this Section 8.03, Investor shall be solely responsible for controlling the defense of such Tax Claim. (c) If such Tax Claim relates to a pre-Closing Tax period or to the election or termination of the Company’s S Corporation status during a pre-Closing Tax period, Sellers’ Representative shall control, defend, settle, compromise, or contest such Tax Claimexpenses relating thereto; provided, however, thatthat the Parent will have the opportunity to participate in any such contest at its expense. Notwithstanding the foregoing, notwithstanding anything the Member Representative shall not have the right to the contrary set forth herein, control any Tax Claim if there is a reasonable likelihood that (i) Sellers’ Representative shall keep Investor and the Company fully informed amount of any proceedings, events and developments related to or in connection with such Tax Claim; Claim could exceed the remaining amount in the Warranty Escrow Fund or (ii) Investor and the Company shall be entitled to receive copies of all correspondence and documents related to such Tax Claim; (iii) Sellers’ Representative shall consult with Investor and shall not enter into any settlement with respect to any issue raised by such Tax Claim could have a material effect on any Poco Company, in a post-Closing Tax period. The Member Representative may not settle any Tax Claim (either at the audit or examination stage or thereafter) without Investorfirst obtaining the Parent’s prior written consent, which consent shall not be unreasonably withheld, delayed conditioned or conditioned; and (iv) Investor and/or the Company delayed. The Parent shall have the right to participate in the defense of such Tax Claimcontrol any audit, each at its own cost and expense. Notwithstanding the foregoingexamination or proceeding, in the event Sellers’ Representative wishes to settle a Tax Claim and the Company and/or Investor withholds its consentor portion thereof, Investor or the Company shall take over control of the Tax Claim at its own cost and expense and, to the extent that the amount of the Tax Claim ultimately is determined to be greater than the amount for which Sellers’ Representative was willing to settle, Investor or the Company, as the case may be, shall bear such excess cost, including interest and/or penalties accruing on or after the date Investor and/or the Company advised the Sellers’ Representative that it was withholding consent to the settlement. Except as provided in the preceding sentence, the costs and expenses (including the cost of counsel) incurred not otherwise covered by Sellers’ Representative in contesting any such Tax Claim shall be born by Sellers. Investor’s Indemnitees shall cooperate with Sellers’ Representative in connection with any such Tax Claimthis Section 13.10.

Defense of Tax Claims. (a) If a notice of deficiencyThe Indemnifying Party may elect to control, proposed adjustmentand may elect to have sole discretion in handling, adjustmentsettling or contesting any audit inquiry, assessmentinformation request, audit, examination, administrative or court audit proceeding, suit, dispute contest or any other claim is delivered, sent, commenced or initiated to or against the Company by any Taxing Authority action with respect to Taxes (including, but not limited to, Taxes and amounts relating to the loss of a Tax benefits described in Section 8.02) controversy for which Sellers are obligated, jointly and severally, it would be required to indemnify the Investor’s Indemnitees other party if it acknowledges in writing that it has sole liability for any Taxes that might arise in such proceeding and agrees in writing to indemnify, defend and hold harmless the Indemnitee from and against and in respect of any such Taxes without regard for the limitations set forth in Section 9.3 (any such Tax controversy, a “Directed Tax ClaimControversy”). The Indemnifying Party shall not compromise or settle any proceeding with respect to a Tax controversy without obtaining the Indemnitee’s prior written consent if such compromise or settlement would have the effect of increasing any Tax liability of the Company or otherwise adversely affecting any Tax attribute of the Company, in each case for any taxable period ending after the Closing Date. If the Indemnifying Party chooses to cause a Tax controversy to become a Directed Tax Controversy in accordance with the first sentence of this Section 9.4(c), the Indemnitee shall cause to be delivered to the Indemnifying Party powers of attorney authorizing the Indemnifying Party to represent the Company shall promptly notify Sellers’ Representative before the relevant taxing authority and Investor in writing of such other documents as are reasonably necessary for the Tax Claim, unless Sellers’ Representative or any Seller has knowledge Indemnifying Party to control the conduct of such Directed Tax ClaimControversy, in which event consistent with the Company shall be under no obligation to notify Sellers’ Representative terms of such Tax Claim. (b) Except as otherwise provided in this Section 8.03, Investor 9.4(c). The parties shall be solely responsible for controlling the defense of such Tax Claim. (c) If such Tax Claim relates to a pre-Closing Tax period or to the election or termination of the Company’s S Corporation status during a pre-Closing Tax period, Sellers’ Representative shall jointly control, defend, settle, compromise, or contest such Tax Claim; provided, however, that, notwithstanding anything to the contrary set forth herein, (i) Sellers’ Representative shall keep Investor and the Company fully informed of any proceedings, events and developments related to or in connection with such Tax Claim; (ii) Investor and the Company shall be entitled to receive copies of all correspondence and documents related to such Tax Claim; (iii) Sellers’ Representative shall consult with Investor and shall not enter into any settlement with respect to any such Tax Claim without Investor’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned; and (iv) Investor and/or the Company shall each have the right to participate in all activities and strategic decisions with respect to, any Tax controversy that is not a Directed Tax Controversy. For all purposes under this Section 9.4, if the defense of such Tax ClaimIndemnifying Party is deemed to be the Stockholders, each at its own cost then all notices to and expense. Notwithstanding from the foregoingIndemnifying Party shall be made to and from the Stockholder Representative, in the event Sellers’ Representative wishes to settle a Tax Claim and the Company and/or Investor withholds its consent, Investor or the Company shall take over control all rights of the Tax Claim at its own cost and expense and, to the extent that the amount of the Tax Claim ultimately is determined to be greater than the amount for which Sellers’ Representative was willing to settle, Investor or the Company, as the case may be, shall bear such excess cost, including interest and/or penalties accruing on or after the date Investor and/or the Company advised the Sellers’ Representative that it was withholding consent to the settlement. Except as provided in the preceding sentence, the costs and expenses (including the cost of counsel) incurred by Sellers’ Representative in contesting any such Tax Claim Indemnifying Party hereunder shall be born held by Sellers. Investor’s Indemnitees shall cooperate with Sellers’ Representative in connection with any such Tax Claimthe Stockholder Representative.