Grossing-up. 16.10.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as required by Applicable Law or as may be otherwise agreed. Subject to Clauses 16.10.2 to 16.10.7 if any deductions or withholdings are required by law the party making the payment shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party such sum as will after such deduction or withholding has been made leave the other party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 shall be limited to that (if any) which it would have been had no such assignment, novation or change taken place. 16.10.2 If either party is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding). 16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty. 16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser. 16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that: (i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and (ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect. 16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority. 16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerland.
Appears in 3 contracts
Samples: Sale and Purchase Agreement (Glaxosmithkline PLC), Sale and Purchase Agreement (Novartis Ag), Sale and Purchase Agreement (Novartis Ag)
Grossing-up. 16.10.1 All sums payable under this Agreement and The Paying Party shall increase the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as required by Applicable Law or as may be otherwise agreed. Subject to Clauses 16.10.2 to 16.10.7 if any deductions or withholdings are required by law the party making the payment shall (except in the case amount of any interest payable under Clause 16.9) payment which is required to be obliged made subject to pay a withholding or deduction to the other party such sum as will extent necessary to ensure that, after such deduction the making of the required withholding or withholding has been made leave deduction, the other party with Receiving Party receives the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 shall be limited to that (if any) which it would have been received had no such assignment, novation withholding or change taken place.
16.10.2 If either party is deduction been made or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold any amount be made, except that no increase shall be made in respect of any Tax:
(i) which is only imposed as a result of a connection between the Business Consideration and/or Receiving Party and the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details jurisdiction of the relevant facts and, so far as possible, details of authority imposing the rate and basis of such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall Tax (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to a connection arising from the generality Receiving Party having or having had a permanent establishment or other fixed place of Clause 16.10.3, the Seller and the Purchaser shall co-operate business in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authoritythat jurisdiction, or obtaining an opinion from reputable local tax counsel having been present or a firm engaged in business in that jurisdiction) other than the mere execution or delivery of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, this Agreement or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; andCredit Support Document;
(ii) which could have been avoided if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, Receiving Party had delivered to the Purchaser’s reasonable satisfactionPaying Party or to the appropriate authority as reasonably requested by the Paying Party, against any Liabilities arising declaration, certificate, or other documents specified in Section B of Part I (including any interest and penaltiesIndividual Terms) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence in a form reasonably satisfactory to the Seller Paying Party; or
(iii) which is only imposed as a result of any Tax representation made by the Receiving Party in Section B of Part I (Individual Terms) for the purposes of this § 23.3 failing or ceasing to be true and accurate provided that a Relevant Tax Deduction this § 23.3(b)(iii) shall not apply (and the Paying Party shall be obliged to increase the amount of any payment pursuant to this § 23.3(b)) if such representation has been made failed or ceased to be true and an appropriate amount paid to accurate by reason of:
(I) any change in, or in the application or interpretation, of any relevant law, enactment, directive, or published practice of any relevant Tax Authorityauthority being a change occurring on or after the Effective Date; or
(II) any action taken by a Tax authority, or brought in a court of competent jurisdiction, on or after the Effective Date.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerland.
Appears in 3 contracts
Samples: Individual Power Purchase Agreement, Individual Power Purchase Agreement, Individual Power Purchase Agreement
Grossing-up. 16.10.1 15.10.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid in cash free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 15.6.1 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law law, the party making payer shall account to the payment shall relevant governmental authority or Tax Authority for the amount so required to be deducted or withheld and, except:
(except i) in the case of any interest payable under Clause 16.915.9; and
(ii) in the case of the Purchase Price where such withholding or deduction is: (i) required by a change of law introduced or coming into force after the date of this Agreement; and (ii) not a withholding or deduction which would not have arisen but for the payer being incorporated or tax resident in the jurisdiction imposing such withholding or deduction, the payer shall be obliged to pay to the other party recipient such sum additional amounts as will ensure that the recipient receives, in total, an amount which (after such deduction or withholding has been made leave the other party with the same amount as made) is no more and no less than it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either a party to this Agreement shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated or any affiliate or person with an interest in a party shall have transferred its rights under this Agreement or its interest in the party or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the party are allocated then the liability of the other party under this Clause 16.10.1 15.10.1 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 If either party 15.10.2 The recipient or expected recipient of an amount paid under this Agreement (or any affiliate of or person with an interest in such recipient) shall take such measures as are reasonable to claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is or becomes aware entitled in respect of any facts making it reasonably likely that the Purchaser, deduction or any relevant member withholding in respect of the Purchaser’s Group, will which a payment has been made or would otherwise be required to deduct be made pursuant to Clause 15.10.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or withhold applications and send a copy thereof to the payer.
15.10.3 If the recipient of a payment made under this Agreement (or any amount affiliate of or person with an interest in respect such recipient) obtains a refund of or obtains and utilises a credit for any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payer such part of such additional amounts paid pursuant to Clause 15.10.1 as the recipient of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice payment certifies to the other party payer will leave it (including details together with any affiliate of or person with an interest it) (after such reimbursement) in no better and no worse position than would have arisen if the relevant facts and, so far as possible, details of the rate and basis of payer had not been required to make such deduction or withholding).
16.10.3 The Seller and 15.10.4 Where any payment is made or to be made under this Agreement pursuant to an indemnity, compensation or reimbursement provision (which, for the Purchaser shallavoidance of doubt, and shall procure that not include any reimbursement made pursuant to Clause 15.10.3) then the members of their respective groups sum payable shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts be adjusted to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided sum as will ensure that:
(i) if a double taxation treaty between after payment of any Taxation charged on such sum in the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence hands of the Seller recipient (or the relevant Share Seller any affiliate of or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in person with an amount not exceeding the rate specified interest in such double taxation treaty recipient) (including any Taxation which may be nilwould have been charged in the absence of any Reliefs), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if after giving credit for any Relief that is or will be available to the recipient (or any affiliate of or person with an opinion from reputable local counsel or a firm interest in such recipient) in respect of accountants of international standing has been obtained as envisaged by Clause 16.10.4the matter giving rise to the payment, the Purchaser recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation or Relief provided that if a party shall have transferred (and for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall procure that have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated (or any relevant member affiliate of or person with an interest in a party shall have transferred its rights under this Agreement or its interest in the party or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the party are allocated) then the liability of the Purchaser Group shallother party under this Clause 15.10.4 shall be limited to that (if any) make which it would have been had no such Relevant Tax Deduction in an amount transfer or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrectchange taken place.
16.10.6 The Purchaser 15.10.5 Clause 15.10.4 shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only not apply if and to the extent that the amount of the indemnity, compensation or reimbursement payment has already been adjusted to take account of the Taxation that will or would be charged on receipt or relief that is or will be available in respect of the matter giving rise to the payment.
15.10.6 Should the Purchaser consider that it or a Relevant Purchaser is required by law so to withhold amounts from the Purchase Price which fall within Clause 15.10.1(ii) the Purchaser will:
(i) notify the Seller at least twenty Business Days prior to making any deduction (which notice shall include a statement of the amounts the Relevant Purchaser intends to deduct or withhold in respect of making such payment and the applicable provision of law requiring it to withhold or deduct);
(ii) provide the Seller with a reasonable opportunity to provide such forms or other evidence that would eliminate or reduce any such deduction or withholding would not have been required had withholding; and
(iii) cooperate in good faith with the Purchaser and each member of the Purchaser’s Group making Seller to reduce or eliminate such payment deduction or to which such payment relates been resident for Tax purposes only in Switzerlandwithholding.
Appears in 2 contracts
Samples: Second Share Purchase Agreement (Brinks Co), Second Share Purchase Agreement (Brinks Co)
Grossing-up. 16.10.1 23.11.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 23.7.2 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings for or on account of Tax are required by law law, the party making payer shall account to the payment shall relevant Tax Authority for the amount so required to be deducted or withheld and except:
(except i) in the case of any the consideration payable under Clause 3; or
(ii) in the case of interest payable under Clause 16.9) 11.6 or 23.10, the payer shall be obliged to pay to the other party recipient such sum additional amounts as will ensure that the recipient receives, in total, an amount which (after such deduction or withholding has been made leave the other party with the same amount as made) is no more and no less than it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either a party to this Agreement shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 23.11.1 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 23.11.2 If either party is the recipient of a payment made under this Agreement obtains a refund of or becomes aware obtains and utilises a credit for any Taxation payable by it or similar benefit by reason of any facts making deduction or withholding for or on account of Taxation then it reasonably likely that shall reimburse to the Purchaserpayer such part of such additional amounts paid pursuant to Clause 23.11.1 above as will leave it (after such reimbursement) in no better and no worse position than would have arisen if the payer had not been required to make such deduction or withholding.
23.11.3 Where any payment is made or to be made under this Agreement pursuant to an indemnity, compensation or reimbursement provision (which, for the avoidance of doubt, shall not include Clause 12 (Wrong Pockets) or any relevant member of reimbursement made pursuant to Clause 23.11.2) then the Purchaser’s Group, sum payable shall be adjusted to such sum as will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided ensure that:
(i) if a double taxation treaty between after payment of any Taxation charged on such sum in the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence hands of the Seller or recipient (including any Taxation which would have been charged in the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that absence of any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nilReliefs), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel after giving credit for any Relief that is or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, will be available to the Purchaser shall (and shall procure that any relevant member recipient in respect of the Purchaser Group shall) make matter giving rise to the payment. the recipient shall be left with a sum equal to the sum that it would have received in the absence of such Relevant Tax Deduction in an amount a charge to Taxation or on a basis which is consistent with that opinion (which may result in no withholding or deduction), relief provided that if a party shall have transferred (for the Seller has indemnified avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the Purchaser and any relevant member benefit in whole or in part of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum other party under this Clause 23.11.3 shall be payable in accordance with Clause 16.10.1 only limited to that (if and to the extent that such deduction or withholding any) which it would not have been required had the Purchaser and each member of the Purchaser’s Group making no such payment transfer or to which such payment relates been resident for Tax purposes only in Switzerlandchange taken place.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement
Grossing-up. 16.10.1 15.11.1 All sums payable under this Agreement and Agreement, the Local Transfer Documents and the Tax Indemnity shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 15.7.3 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 15.11.2 to 16.10.7 15.11.7 (inclusive), if any deductions or withholdings are required by law law, the party making the payment (the “Payer”) shall (except in the case of any interest payable under Clause 16.9this Agreement) be obliged to pay to the other party to whom the payment is being made (the “Payee”) such sum as will after such deduction or withholding has been made leave the other party Payee with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the Payee shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party Payer under this Clause 16.10.1 15.11.1 shall be limited to that (if any) which it would have been had no such assignment, novation or change taken place.
16.10.2 15.11.2 If either party Seller is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, Purchaser will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Purchase Consideration (a “Relevant Tax Deduction”) payable to a Seller (the “Withholding Seller”), then that party Seller shall, as soon as reasonably practicable, give notice to the other party Seller and the Purchaser (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 15.11.3 The Seller Sellers and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Withholding Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or and /or to enable the Withholding Seller or the relevant Business Share Seller or Share Business Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 15.11.4 Without prejudice to the generality of Clause 16.10.315.11.3, the Seller Sellers and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the SellerSellers) including, if requested by the Withholding Seller and at the Withholding Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Withholding Seller and the Purchaser.
16.10.5 15.11.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Lawapplicable law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Withholding Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Withholding Seller has provided the Purchaser with such evidence as is required under Applicable Law applicable law to establish the entitlement of the Withholding Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained at the request of the Withholding Seller as envisaged by Clause 16.10.415.11.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Withholding Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 15.11.6 The Purchaser shall promptly provide the Withholding Seller with evidence reasonably satisfactory to the Withholding Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 15.11.7 If any Relevant Tax Deduction is required, required an additional sum shall be payable in accordance with Clause 16.10.1 15.11.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerlandthe United Kingdom.
Appears in 2 contracts
Samples: Contribution Agreement (Novartis Ag), Contribution Agreement (Novartis Ag)
Grossing-up. 16.10.1 20.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by Applicable Law law or as may be otherwise agreed. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law from any such sum payable (other than any payment by the party making Purchaser in respect of the payment Purchase Price or the Deferred Payment), the payor shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party recipient such sum as will after such deduction or withholding has been made made, leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated or declared a trust in respect of the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 20.1 shall be limited to that (if any) which it would have been had no such assignment, novation novation, declaration of trust or change taken place.
16.10.2 If either party 20.2 The recipient or expected recipient of a payment under this Agreement shall take such steps as the payor may reasonably request in order to claim from the appropriate Taxation Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is or becomes aware entitled in respect of any facts making it reasonably likely that the Purchaser, deduction or any relevant member withholding in respect of the Purchaser’s Group, will which a payment has been or would otherwise be required to deduct be made pursuant to Clause 20.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or withhold applications as the payor may reasonably request and send a copy of them to the payor.
20.3 If the recipient of a payment made under this Agreement receives a credit for or refund of any amount in respect Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payor such part of such additional amounts paid pursuant to Clause 20.1 above as the recipient of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice payment certifies to the other party payor will leave the recipient (including details of the relevant facts and, so far as possible, details of the rate and basis of after such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amountreimbursement) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that better and no worse position than the Seller has indemnified recipient would have been in if the Purchaser and any relevant member of the Purchaser’s Group, payor had not been required to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that make such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerlandwithholding.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Scotts Miracle-Gro Co), Sale and Purchase Agreement (Scotts Miracle-Gro Co)
Grossing-up. 16.10.1 17.10.1 All sums payable under this Agreement and Agreement, the Local Transfer Documents and the Tax Indemnity shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 17.6.3 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 17.10.3 to 16.10.7 17.10.7 if any deductions or withholdings are required by law the party making the payment shall (except in the case of (i) any interest payable under Clause 16.97.5 or 17.9 (ii) or any amount payable under Schedule 17 which would not have been the subject of a deduction or withholding had it been paid to a company resident in Switzerland for the purposes of the double taxation treaty between Belgium and Switzerland which was beneficially entitled to the payments and was not party to a conduit arrangement in respect of them) be obliged to pay to the other party such sum as will after such deduction or withholding has been made leave the other party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 17.10.1 shall be limited to that (if any) which it would have been had no such assignment, novation or change taken place.
16.10.2 17.10.2 If either party is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Consideration Purchase Price (excluding any amount payable under Schedule 17) (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding)) provided that for purposes of this Clause 17.10.2, the Seller may assume that the Purchase Price will be paid by (and for) a company resident for Tax purposes only in Belgium.
16.10.3 17.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Share Seller or Share Business Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 17.10.4 Without prejudice to the generality of Clause 16.10.317.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 17.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained at the request of the Seller as envisaged by Clause 16.10.417.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 17.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 17.10.7 If any Relevant Tax Deduction is required, required an additional sum shall be payable in accordance with Clause 16.10.1 17.10.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in SwitzerlandBelgium.
Appears in 2 contracts
Samples: Share and Business Sale Agreement (Glaxosmithkline PLC), Share and Business Sale Agreement (Novartis Ag)
Grossing-up. 16.10.1 15.10.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid in cash free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 15.6.1 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law law, the party making payer shall account to the payment shall relevant governmental authority or Tax Authority for the amount so required to be deducted or withheld and, except:
(except i) in the case of any interest payable under Clause 16.915.9; and
(ii) in the case of the Purchase Price where such withholding or deduction is: (a) required by a change of law introduced or coming into force after the date of this Agreement; and (b) not a withholding or deduction which would not have arisen but for the payer being incorporated or tax resident in the jurisdiction imposing such withholding or deduction, the payer shall be obliged to pay to the other party recipient such sum additional amounts as will ensure that the recipient receives, in total, an amount which (after such deduction or withholding has been made leave the other party with the same amount as made) is no more and no less than it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either a party to this Agreement shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated or any affiliate or person with an interest in a party shall have transferred its rights under this Agreement or its interest in the party or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the party are allocated then the liability of the other party under this Clause 16.10.1 15.10.1 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 If either party 15.10.2 The recipient or expected recipient of an amount paid under this Agreement (or any affiliate of or person with an interest in such recipient) shall take such measures as are reasonable to claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is or becomes aware entitled in respect of any facts making it reasonably likely that the Purchaser, deduction or any relevant member withholding in respect of the Purchaser’s Group, will which a payment has been made or would otherwise be required to deduct be made pursuant to Clause 15.10.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or withhold applications and send a copy thereof to the payer.
15.10.3 If the recipient of a payment made under this Agreement (or any amount affiliate of or person with an interest in respect such recipient) obtains a refund of or obtains and utilises a credit for any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payer such part of such additional amounts paid pursuant to Clause 15.10.1 as the recipient of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice payment certifies to the other party payer will leave it (including details together with any affiliate of or person with an interest it) (after such reimbursement) in no better and no worse position than would have arisen if the relevant facts and, so far as possible, details of the rate and basis of payer had not been required to make such deduction or withholding).
16.10.3 The Seller and 15.10.4 Subject to Clause 6.3.3, where any payment is made or to be made under this Agreement pursuant to an indemnity, compensation or reimbursement provision (which, for the Purchaser shallavoidance of doubt, and shall procure that not include any reimbursement made pursuant to Clause 15.10.3) then the members of their respective groups sum payable shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts be adjusted to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided sum as will ensure that:
(i) if a double taxation treaty between after payment of any Taxation charged on such sum in the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence hands of the Seller recipient (or the relevant Share Seller any affiliate of or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in person with an amount not exceeding the rate specified interest in such double taxation treaty recipient) (including any Taxation which may be nilwould have been charged in the absence of any Reliefs), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if after giving credit for any Relief that is or will be available to the recipient (or any affiliate of or person with an opinion from reputable local counsel or a firm interest in such recipient) in respect of accountants of international standing has been obtained as envisaged by Clause 16.10.4the matter giving rise to the payment, the Purchaser recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation or Relief provided first that the reference in this Clause 15.10.4 to a Relief shall include any saving of Taxation which is the subject of Clause 6.3.3 and provided secondly that if a party shall have transferred (and for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall procure that have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated (or any relevant member affiliate of or person with an interest in a party shall have transferred its rights under this Agreement or its interest in the party or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the party are allocated) then the liability of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum other party under this Clause 15.10.4 shall be payable in accordance with Clause 16.10.1 only limited to that (if and to the extent that such deduction or withholding any) which it would not have been required had the Purchaser and each member of the Purchaser’s Group making no such payment transfer or to which such payment relates been resident for Tax purposes only in Switzerlandchange taken place.
Appears in 2 contracts
Samples: Share Purchase Agreement (Brinks Co), Share Purchase Agreement (Brinks Co)
Grossing-up. 16.10.1 All 16.1 Unless as otherwise required by applicable Law or agreed upon between the parties, all sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as required by Applicable Law or as may be otherwise agreedwhatsoever. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law Law, the party making the payment payor shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party recipient such sum as will after such deduction or withholding has been made leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated or declared a trust in respect of the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 16.1 shall be limited to that (if any) which it would have been had no such assignment, novation novation, declaration of trust or change taken place.
16.10.2 If either party 16.2 The recipient or expected recipient of a payment under this Agreement shall claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is or becomes aware entitled in respect of any facts making it reasonably likely that the Purchaser, deduction or any relevant member withholding in respect of the Purchaser’s Group, will which a payment has been or would otherwise be required to deduct be made pursuant to Clause 16.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or withhold applications and send a copy of them to the payor.
16.3 If the recipient of a payment made under this Agreement receives a credit for or refund of any amount in respect Tax payable by it or similar benefit by reason of any deduction or withholding for or on account of Tax then it shall reimburse to the payor such part of such additional amounts paid pursuant to Clause 16.1 above as the recipient of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice payment certifies to the other party payor will leave it (including details of the relevant facts and, so far as possible, details of the rate and basis of after such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amountreimbursement) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that better and no worse position than would have arisen if the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, payor had not been required to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that make such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerlandwithholding.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Shiloh Industries Inc)
Grossing-up. 16.10.1 18.10.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by Applicable Law law (save that this Clause 18.10.1 shall not apply to any deduction or as may withholding on account of Taxation imposed by the PRC or India which shall be otherwise agreeddealt with in accordance with Clause 18.11). Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law law, the party making the payment payer shall (except in the case of any interest payable under Clause 16.99.5 or 18.9 and except for any payments made pursuant to Clause 8.5, 8.6, 16.2 or 18.10.3 or paragraph 12.3 of Schedule 7) be obliged to pay to the other party recipient such sum as will will, after such deduction or withholding has been made made, leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the recipient shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit benefit, in whole or in part part, of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated allocated, then the liability of the other party payer under this Clause 16.10.1 18.10.1 shall be limited to that (if any) which it would have been had no transfer or change taken place.
18.10.2 The recipient or expected recipient of an amount paid under this Agreement shall (or shall procure that any Affiliate shall) take such measures as are reasonable to claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of any deduction or withholding in respect of which a payment has been made or would otherwise be required to be made pursuant to Clause 18.10.1 and for such purposes shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy thereof to the payer.
18.10.3 If the recipient of a payment made under this Agreement (or any Affiliates of such recipient) receives a credit for or refund of any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation, then it shall reimburse to the payer such part of such additional amounts paid to it pursuant to Clause 18.10.1 as the recipient of the payment certifies to the payer will leave it (together with any Affiliate (after such reimbursement) in no better and no worse position than it would have been if the payer had not been required to make such deduction or withholding.
18.10.4 Where any payment is made under this Agreement pursuant to an indemnity, compensation or reimbursement provision (other than pursuant to Clause 8.5.3, 8.6.3, 16.2 or 18.10.3 or paragraph 12.3 of Schedule 7) and that sum is subject to a charge to Taxation in the hands of the recipient or would be in the absence of any reliefs, then the sum payable shall be increased to such sum as will ensure that after payment of such Taxation, including any Taxation which would have been charged in the absence of any reliefs, the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation, provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit, in whole or in part, of this Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated, then the liability of the payer under this Clause 18.10.4 shall be limited to that (if any) which it would have been had no such assignment, novation or change transfer taken place.
16.10.2 If either party is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice 18.10.5 Clause 18.10.4 shall not apply to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided extent that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence amount of the Seller indemnity, compensation or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member reimbursement payment has already been increased to take account of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may Taxation that will or would be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treatycharged on receipt; andor
(ii) if an opinion from reputable local counsel the underlying amount in respect of which the indemnity, compensation or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which reimbursement payment is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been being made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that such deduction or withholding would not itself have been required had the Purchaser and each member of the Purchaser’s Group making subject to such payment or to which such payment relates been resident for Tax purposes only in SwitzerlandTaxation.
Appears in 1 contract
Grossing-up. 16.10.1 15.11.1 All sums payable under this Agreement and Agreement, the Local Transfer Documents and the Tax Indemnity shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 15.7.3 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 15.11.2 to 16.10.7 15.11.7 (inclusive), if any deductions or withholdings are required by law law, the party making the payment (the “Payer”) shall (except in the case of any interest payable under Clause 16.9this Agreement) be obliged to pay to the other party to whom the payment is being made (the “Payee”) such sum as will after such deduction or withholding has been made leave the other party Payee with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the Payee shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party Payer under this Clause 16.10.1 Clause
15.11.1 shall be limited to that (if any) which it would have been had no such assignment, novation or change taken place.
16.10.2 15.11.2 If either party Seller is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, Purchaser will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Purchase Consideration (a “Relevant Tax Deduction”) payable to a Seller (the “Withholding Seller”), then that party Seller shall, as soon as reasonably practicable, give notice to the other party Seller and the Purchaser (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 15.11.3 The Seller Sellers and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Withholding Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or and /or to enable the Withholding Seller or the relevant Business Share Seller or Share Business Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 15.11.4 Without prejudice to the generality of Clause 16.10.315.11.3, the Seller Sellers and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the SellerSellers) including, if requested by the Withholding Seller and at the Withholding Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Withholding Seller and the Purchaser.
16.10.5 15.11.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Lawapplicable law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Withholding Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Withholding Seller has provided the Purchaser with such evidence as is required under Applicable Law applicable law to establish the entitlement of the Withholding Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained at the request of the Withholding Seller as envisaged by Clause 16.10.415.11.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Withholding Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 15.11.6 The Purchaser shall promptly provide the Withholding Seller with evidence reasonably satisfactory to the Withholding Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 15.11.7 If any Relevant Tax Deduction is required, required an additional sum shall be payable in accordance with Clause 16.10.1 15.11.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerlandthe United Kingdom.
Appears in 1 contract
Grossing-up. 16.10.1 13.10.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid in cash free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 13.6.1 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law law, the party making payer shall account to the payment shall relevant governmental authority or Tax Authority for the amount so required to be deducted or withheld and, except:
(except i) in the case of any interest payable under Clause 16.913.9; and
(ii) in the case of the Purchase Price where such withholding or deduction is: (a) required by a change of law introduced or coming into force after the date of this Agreement; and (b) not a withholding or deduction which would not have arisen but for the payer being incorporated or tax resident in the jurisdiction imposing such withholding or deduction, the payer shall be obliged to pay to the other party recipient such sum additional amounts as will ensure that the recipient receives, in total, an amount which (after such deduction or withholding has been made leave the other party with the same amount as made) is no more and no less than it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either a party to this Agreement shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated or any affiliate or person with an interest in a party shall have transferred its rights under this Agreement or its interest in the party or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the party are allocated then the liability of the other party under this Clause 16.10.1 13.10.1 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 If either party 13.10.2 The recipient or expected recipient of an amount paid under this Agreement (or any affiliate of or person with an interest in such recipient) shall take such measures as are reasonable to claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is or becomes aware entitled in respect of any facts making it reasonably likely that the Purchaser, deduction or any relevant member withholding in respect of the Purchaser’s Group, will which a payment has been made or would otherwise be required to deduct be made pursuant to Clause 13.10.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or withhold applications and send a copy thereof to the payer.
13.10.3 If the recipient of a payment made under this Agreement (or any amount affiliate of or person with an interest in respect such recipient) obtains a refund of or obtains and utilises a credit for any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payer such part of such additional amounts paid pursuant to Clause 13.10.1 as the recipient of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice payment certifies to the other party payer will leave it (including details together with any affiliate of or person with an interest it) (after such reimbursement) in no better and no worse position than would have arisen if the relevant facts and, so far as possible, details of the rate and basis of payer had not been required to make such deduction or withholding).
16.10.3 The Seller and 13.10.4 Subject to Clause 4.1.5, where any payment is made or to be made under this Agreement pursuant to an indemnity, compensation or reimbursement provision (which, for the Purchaser shallavoidance of doubt, and shall procure that not include any reimbursement made pursuant to Clause 13.10.3) then the members of their respective groups sum payable shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts be adjusted to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided sum as will ensure that:
(i) if a double taxation treaty between after payment of any Taxation charged on such sum in the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence hands of the Seller recipient (or the relevant Share Seller any affiliate of or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in person with an amount not exceeding the rate specified interest in such double taxation treaty recipient) (including any Taxation which may be nilwould have been charged in the absence of any Reliefs), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if after giving credit for any Relief that is or will be available to the recipient (or any affiliate of or person with an opinion from reputable local counsel or a firm interest in such recipient) in respect of accountants of international standing has been obtained as envisaged by Clause 16.10.4the matter giving rise to the payment, the Purchaser recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation or Relief provided first that the reference in this Clause 13.10.4 to a Relief shall include any saving of Taxation which is the subject of Clause 4.1.5 and provided secondly that if a party shall have transferred (and for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall procure that have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated (or any relevant member affiliate of or person with an interest in a party shall have transferred its rights under this Agreement or its interest in the party or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the party are allocated) then the liability of the Purchaser Group shallother party under this Clause 13.10.4 shall be limited to that (if any) make which it would have been had no such Relevant Tax Deduction in an amount transfer or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrectchange taken place.
16.10.6 The Purchaser 13.10.5 Clause 13.10.4 shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only not apply if and to the extent that the amount of the indemnity, compensation or reimbursement payment has already been adjusted to take account of the Taxation that will or would be charged on receipt or relief that is or will be available in respect of the matter giving rise to the payment.
13.10.6 Should the Purchaser consider that it is required by law so to withhold amounts from the Purchase Price which fall within Clause 13.10.1(ii), the Purchaser will:
(i) notify the Seller at least twenty Business Days prior to making any deduction (which notice shall include a statement of the amounts the Purchaser intends to deduct or withhold in respect of making such payment and the applicable provision of law requiring it to withhold or deduct);
(ii) provide the Seller with a reasonable opportunity to provide such forms or other evidence that would eliminate or reduce any such deduction or withholding would not have been required had withholding; and
(iii) cooperate in good faith with the Purchaser and each member of the Purchaser’s Group making Seller to reduce or eliminate such payment deduction or to which such payment relates been resident for Tax purposes only in Switzerlandwithholding.
Appears in 1 contract
Samples: Share Purchase Agreement (Brinks Co)
Grossing-up. 16.10.1 14.11.1 All sums payable under this Agreement and Agreement, the Local Transfer Documents and the Tax Indemnity shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 15.7.3 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 15.11.2 to 16.10.7 15.11.7 (inclusive), if any deductions or withholdings are required by law law, the party making the payment (the “Payer”) shall (except in the case of any interest payable under Clause 16.9this Agreement) be obliged to pay to the other party to whom the payment is being made (the “Payee”) such sum as will after such deduction or withholding has been made leave the other party Payee with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the Payee shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party Payer under this Clause 16.10.1 15.11.1 shall be limited to that (if any) which it would have been had no such assignment, novation or change taken place.
16.10.2 14.11.2 If either party Seller is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, Purchaser will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Purchase Consideration (a “Relevant Tax Deduction”) payable to a Seller (the “Withholding Seller”), then that party Seller shall, as soon as reasonably practicable, give notice to the other party Seller and the Purchaser (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 14.11.3 The Seller Sellers and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Withholding Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or and /or to enable the Withholding Seller or the relevant Business Share Seller or Share Business Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 14.11.4 Without prejudice to the generality of Clause 16.10.315.11.3, the Seller Sellers and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the SellerSellers) including, if requested by the Withholding Seller and at the Withholding Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Withholding Seller and the Purchaser.
16.10.5 14.11.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Lawapplicable law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Withholding Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Withholding Seller has provided the Purchaser with such evidence as is required under Applicable Law applicable law to establish the entitlement of the Withholding Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained at the request of the Withholding Seller as envisaged by Clause 16.10.415.11.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Withholding Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 14.11.6 The Purchaser shall promptly provide the Withholding Seller with evidence reasonably satisfactory to the Withholding Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 14.11.7 If any Relevant Tax Deduction is required, required an additional sum shall be payable in accordance with Clause 16.10.1 15.11.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerlandthe United Kingdom.
Appears in 1 contract
Grossing-up. 16.10.1 19.12.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law from any payment in respect of a Seller Obligation or a Purchaser Obligation, the party making the payment payer shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party recipient such sum as will after such deduction or withholding has been made leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the recipient shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shallshall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated or any Respective Group or person with an interest in the recipient shall have transferred its rights under this Agreement or its interest in the recipient or changed its tax residence or the permanent establishment to which its rights under this Agreement or its interest in the recipient are allocated then the liability of the payer under this Clause 19.12.1 shall be limited to that (if any) which it would have been had no such transfer or change taken place.
19.12.2 If the recipient of a payment made under Clause 19.12.1 or Clause 19.12.3 or any Respective Group of or person with an interest in such recipient obtains a Relief in respect of the relevant deduction, withholding or Taxation, then it shall pay to the payer such amount as the recipient of the payment (acting in good faith) certifies to the payer will leave it together with any Respective Group of or person with an interest it (after such reimbursement) in no better and no worse position than it would have been in if the date payer had not been required to make such deduction or withholding or such Taxation had not arisen, in each case to the relevant extent.
19.12.3 Where any payment is made under this Agreement in respect of a Seller Obligation or a Purchaser Obligation and that sum is subject to a charge to Taxation in the hands of the recipient then the sum payable shall be increased to such sum as will ensure that:
(a) after payment of such Taxation; and
(b) after giving credit for any Relief available to the recipient in respect of the matter giving rise to the payment, to the extent that such Relief results in an actual saving of Tax for the recipient at the time of the payment, or the recipient, acting reasonably, confirms in writing that such an actual saving of Tax is reasonably expected to be made as a result of the Relief by the end of the accounting period following the one in which the payment is made (and provided further that the recipient will provide to the payer, on demand, reasonable supporting evidence for such confirmation), the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement, Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party payer under this Clause 16.10.1 19.12.3 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 If either party is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerland.
Appears in 1 contract
Grossing-up. 16.10.1 20.1 All sums payable under this Agreement and the Local Transfer Documents shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by Applicable Law law or as may be otherwise agreed. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law from any such sum payable (other than any 50 payment by the party making Purchaser in respect of the payment Purchase Price or the Deferred Payment), the payor shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party recipient such sum as will after such deduction or withholding has been made made, leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated or declared a trust in respect of the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, shall have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 20.1 shall be limited to that (if any) which it would have been had no such assignment, novation novation, declaration of trust or change taken place.
16.10.2 If either party 20.2 The recipient or expected recipient of a payment under this Agreement shall take such steps as the payor may reasonably request in order to claim from the appropriate Taxation Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is or becomes aware entitled in respect of any facts making it reasonably likely that the Purchaser, deduction or any relevant member withholding in respect of the Purchaser’s Group, will which a payment has been or would otherwise be required to deduct be made pursuant to Clause 20.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or withhold applications as the payor may reasonably request and send a copy of them to the payor.
20.3 If the recipient of a payment made under this Agreement receives a credit for or refund of any amount in respect Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payor such part of such additional amounts paid pursuant to Clause 20.1 above as the recipient of the Business Consideration and/or the Share Consideration (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice payment certifies to the other party payor will leave the recipient (including details of the relevant facts and, so far as possible, details of the rate and basis of after such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amountreimbursement) and/or to enable the Seller or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that better and no worse position than the Seller has indemnified recipient would have been in if the Purchaser and any relevant member of the Purchaser’s Group, payor had not been required to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that make such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerlandwithholding.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Grossing-up. 16.10.1 All sums payable under this Agreement and Agreement, the Local Transfer Documents and the Tax Indemnity shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be permitted by Clause 16.6.3 or required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 16.10.3 to 16.10.7 if any deductions or withholdings are required by law the party making the payment shall (except in the case of (i) any interest payable under Clause 16.97.5 or 16.9 (ii) or any amount payable under Schedule 17 which would not have been the subject of a deduction or withholding had it been paid to a company resident in Switzerland for the purposes of the double taxation treaty between Belgium and Switzerland which was beneficially entitled to the payments and was not party to a conduit arrangement in respect of them) be obliged to pay to the other party such sum as will after such deduction or withholding has been made leave the other party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned or novated the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, have changed its tax residence or the permanent establishment to which the rights under this Agreement are allocated then the liability of the other party under this Clause 16.10.1 shall be limited to that (if any) which it would have been had no such assignment, novation or change taken place.
16.10.2 If either party is or becomes aware of any facts making it reasonably likely that the Purchaser, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold any amount in respect of the Business Consideration and/or the Share Consideration Purchase Price (excluding any amount payable under Schedule 17) (a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding)) provided that for purposes of this Clause 16.10.2, the Seller may assume that the Purchase Price will be paid by (and for) a company resident for Tax purposes only in Belgium.
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller or the relevant Business Share Seller or Share Business Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.
16.10.4 Without prejudice to the generality of Clause 16.10.3, the Seller and the Purchaser shall co-operate in good faith to establish or agree the amount or basis of calculation of any Relevant Tax Deduction prior to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4, the Purchaser shall (and shall procure that any relevant member of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaser’s Group, to the Purchaser’s reasonable satisfaction, against any Liabilities arising (including any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and to the extent that such deduction or withholding would not have been required had the Purchaser and each member of the Purchaser’s Group making such payment or to which such payment relates been resident for Tax purposes only in Switzerland.
Appears in 1 contract
Samples: Share and Business Sale Agreement (Glaxosmithkline PLC)
Grossing-up. 16.10.1 9.5.1 All sums payable under this Agreement and or the Local Transfer Documents Indemnification Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law to be made from any payment under this Agreement or the party making Indemnification Agreement (except (i) of interest, (ii) of Consideration paid under Clause 3.2, (iii) pursuant to Clause 8.2 or Clause 9.1, (iv) of the Receivable Payment Amount or Other Receivables Payment Amount or (v) to the extent that the relevant withholding or deduction has already been taken into account in determining the amount of the payment or the recipient has otherwise been compensated therefor):
(i) to the Purchaser; or
(ii) by the Purchaser to the Seller, the payer shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party recipient such sum as will after such deduction or withholding has been made leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the recipient shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, Indemnification Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement or the Indemnification Agreement are allocated then the liability of the other party payer under this Clause 16.10.1 9.5 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 If either party is or becomes aware of any facts making it reasonably likely that 9.5.2 If, and to the Purchaserextent that, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold Tax Authority notifies any party that it considers that any amount in respect of the Business Consideration and/or the Share Consideration (including, for these purposes, where such amount is nil) deducted or withheld from a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller payment under this Agreement or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.Indemnification Agreement is less than the amount required by law:
16.10.4 Without prejudice to (i) the generality of Clause 16.10.3, the Seller and the Purchaser parties shall co-operate in good faith order to establish or agree ensure that the correct amount or basis of calculation of any Relevant Tax Deduction prior is accounted for to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel either:
(a) where, had the correct amount been deducted or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4withheld, the Purchaser shall (and shall procure that any relevant member payer would not, pursuant to Clause 9.5.1, have been obliged to increase the amount of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on payment to the recipient as a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaserdeduction or
(b) in all other cases, the payer shall indemnify the recipient and the recipient’s Group, to the Purchaser’s reasonable satisfaction, Affiliates against any Liabilities arising (including Losses suffered as a result thereof, except, in each case, in respect of any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and penalties to the extent that such interest and penalties are attributable to an unreasonable delay or default by the indemnified party or its Affiliates.
9.5.3 The recipient or expected recipient of an amount paid under this Agreement or the Indemnification Agreement shall take (and, where relevant, procure that its Affiliates take) all reasonable measures to claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of any deduction or withholding in respect of which a payment has been made or would not otherwise be required to be made pursuant to Clause 9.5.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy thereof to the payer.
9.5.4 If the recipient of a payment made under this Agreement or the Indemnification Agreement (or any of its Affiliates) receives a credit for or refund of any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payer such part of such additional amounts paid to it pursuant to Clause 9.5.1 above as the recipient of the payment certifies to the payer will leave it (after such reimbursement) in no better and no worse position than it would have been if the payer had not been required had to make such deduction or withholding.
9.5.5 Where any payment is made under this Agreement or the Indemnification Agreement (a) by the Seller to the Purchaser pursuant to an indemnity, compensation or reimbursement provision (including, for the avoidance of doubt, pursuant to Clause 8.2 or Clause 12; but not including, for the avoidance of doubt, any payment (i) of interest or (ii) pursuant to Clause 9.1), or as a result of a breach of a Seller’s Warranty or (b) by the Purchaser to the Seller pursuant to an indemnity, compensation or reimbursement provision (not including, for the avoidance of doubt, any payment (i) of interest, (ii) of Consideration paid under Clause 3.2 or (iii) pursuant to Clause 9.1), or as a result of a breach of a Purchaser’s Warranty, and each member that sum is subject to a charge to Taxation in the hands of the recipient or would be in the absence of any Purchaser’s Group making Reliefs then the sum payable shall be increased to such sum as will ensure that after payment of such Taxation (including any Taxation which would have been charged in the absence of any Purchaser’s Reliefs), the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or the Indemnification Agreement or shall have changed its tax residence or the permanent establishment to which such payment relates been resident for Tax purposes only in Switzerland.the rights under this Agreement or the Indemnification Agreement are allocated the liability of the payer under this Clause
Appears in 1 contract
Samples: Sale and Purchase Agreement
Grossing-up. 16.10.1 9.5.1 All sums payable under this Agreement and or the Local Transfer Documents Indemnification Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by Applicable Law or as may be otherwise agreedlaw. Subject to Clauses 16.10.2 to 16.10.7 if If any deductions or withholdings are required by law to be made from any payment under this Agreement or the party making Indemnification Agreement (except (i) of interest, (ii) of Consideration paid under Clause 3.2, (iii) pursuant to Clause 8.2 or Clause 9.1, (iv) of the Receivable Payment Amount or Other Receivables Payment Amount or (v) to the extent that the relevant withholding or deduction has already been taken into account in determining the amount of the payment or the recipient has otherwise been compensated therefor):
(i) to the Purchaser; or
(ii) by the Purchaser to the Seller, the payer shall (except in the case of any interest payable under Clause 16.9) be obliged to pay to the other party recipient such sum as will after such deduction or withholding has been made leave the other party recipient with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement the recipient shall have assigned transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or novated anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or shall, after the date of this Agreement, Indemnification Agreement or shall have changed its tax residence or the permanent establishment to which the rights under this Agreement or the Indemnification Agreement are allocated then the liability of the other party payer under this Clause 16.10.1 9.5 shall be limited to that (if any) which it would have been had no such assignment, novation transfer or change taken place.
16.10.2 If either party is or becomes aware of any facts making it reasonably likely that 9.5.2 If, and to the Purchaserextent that, or any relevant member of the Purchaser’s Group, will be required to deduct or withhold Tax Authority notifies any party that it considers that any amount in respect of the Business Consideration and/or the Share Consideration (including, for these purposes, where such amount is nil) deducted or withheld from a “Relevant Tax Deduction”), then that party shall, as soon as reasonably practicable, give notice to the other party (including details of the relevant facts and, so far as possible, details of the rate and basis of such withholding).
16.10.3 The Seller and the Purchaser shall, and shall procure that the members of their respective groups shall (at the Seller’s cost), co-operate with each other in good faith and use all reasonable efforts to reduce or mitigate any Relevant Tax Deduction (or its amount) and/or to enable the Seller payment under this Agreement or the relevant Business Seller or Share Seller to obtain any available credit or refund in respect of such Relevant Tax Deduction, including, without limitation, making any available claim under an applicable double taxation treaty.Indemnification Agreement is less than the amount required by law:
16.10.4 Without prejudice to (i) the generality of Clause 16.10.3, the Seller and the Purchaser parties shall co-operate in good faith order to establish or agree ensure that the correct amount or basis of calculation of any Relevant Tax Deduction prior is accounted for to Closing (and in this regard the Purchaser shall consider reasonably any relevant information or evidence provided or obtained by the Seller) including, if requested by the Seller and at the Seller’s expense, by seeking to obtain a ruling or confirmation from a relevant Tax Authority, or obtaining an opinion from reputable local tax counsel or a firm of accountants of international standing satisfactory to the Purchaser (acting reasonably) and instructed jointly by the Seller and the Purchaser.
16.10.5 The Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, make any Relevant Tax Deduction in the minimum amount required by Applicable Law, provided that:
(i) if a double taxation treaty between the jurisdiction under the laws of which the Relevant Tax Deduction is required and the jurisdiction of residence of the Seller or the relevant Share Seller or Business Seller is in force, the Purchaser shall (and shall procure that any relevant member of the Purchaser’s Group shall) make any Relevant Tax Deduction in an amount not exceeding the rate specified in such double taxation treaty (which may be nil), provided that the Seller has provided the Purchaser with such evidence as is required under Applicable Law to establish the entitlement of the Seller (or relevant Share Seller or Business Seller) to the benefit of the applicable treaty; and
(ii) if an opinion from reputable local counsel either:
(a) where, had the correct amount been deducted or a firm of accountants of international standing has been obtained as envisaged by Clause 16.10.4withheld, the Purchaser shall (and shall procure that any relevant member payer would not, pursuant to Clause 9.5.1, have been obliged to increase the amount of the Purchaser Group shall) make such Relevant Tax Deduction in an amount or on payment to the recipient as a basis which is consistent with that opinion (which may result in no withholding or deduction), provided that the Seller has indemnified the Purchaser and any relevant member of the Purchaserdeduction or withholding, the recipient shall indemnify the payer and the payer’s Group, to the Purchaser’s reasonable satisfaction, Affiliates against any Liabilities arising Losses suffered as a result thereof; or
(including b) in all other cases, the payer shall indemnify the recipient and the recipient’s Affiliates against any Losses suffered as a result thereof, except, in each case, in respect of any interest and penalties) should such opinion be wholly or partly incorrect.
16.10.6 The Purchaser shall promptly provide the Seller with evidence reasonably satisfactory to the Seller that a Relevant Tax Deduction has been made and an appropriate amount paid to the relevant Tax Authority.
16.10.7 If any Relevant Tax Deduction is required, an additional sum shall be payable in accordance with Clause 16.10.1 only if and penalties to the extent that such interest and penalties are attributable to an unreasonable delay or default by the indemnified party or its Affiliates.
9.5.3 The recipient or expected recipient of an amount paid under this Agreement or the Indemnification Agreement shall take (and, where relevant, procure that its Affiliates take) all reasonable measures to claim from the appropriate Tax Authority any exemption, rate reduction, refund, credit or similar benefit (including pursuant to any relevant double tax treaty) to which it is entitled in respect of any deduction or withholding in respect of which a payment has been made or would not otherwise be required to be made pursuant to Clause 9.5.1 and, for such purposes, shall, within any applicable time limits, submit any claims, notices, returns or applications and send a copy thereof to the payer.
9.5.4 If the recipient of a payment made under this Agreement or the Indemnification Agreement (or any of its Affiliates) receives a credit for or refund of any Taxation payable by it or similar benefit by reason of any deduction or withholding for or on account of Taxation then it shall reimburse to the payer such part of such additional amounts paid to it pursuant to Clause 9.5.1 above as the recipient of the payment certifies to the payer will leave it (after such reimbursement) in no better and no worse position than it would have been if the payer had not been required had to make such deduction or withholding.
9.5.5 Where any payment is made under this Agreement or the Indemnification Agreement (a) by the Seller to the Purchaser pursuant to an indemnity, compensation or reimbursement provision (including, for the avoidance of doubt, pursuant to Clause 8.2 or Clause 12; but not including, for the avoidance of doubt, any payment (i) of interest or (ii) pursuant to Clause 9.1), or as a result of a breach of a Seller’s Warranty or (b) by the Purchaser to the Seller pursuant to an indemnity, compensation or reimbursement provision (not including, for the avoidance of doubt, any payment (i) of interest, (ii) of Consideration paid under Clause 3.2 or (iii) pursuant to Clause 9.1), or as a result of a breach of a Purchaser’s Warranty, and each member that sum is subject to a charge to Taxation in the hands of the recipient or would be in the absence of any Purchaser’s Group making Reliefs then the sum payable shall be increased to such sum as will ensure that after payment of such Taxation (including any Taxation which would have been charged in the absence of any Purchaser’s Reliefs), the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to Taxation provided that if the recipient shall have transferred (for the avoidance of doubt, by whatever means, including by way of a declaration of trust or anything that amounts in substance to a transfer) the benefit in whole or in part of this Agreement or the Indemnification Agreement or shall have changed its tax residence or the permanent establishment to which such payment relates been resident for Tax purposes only in Switzerland.the rights under this Agreement or the Indemnification Agreement are allocated the liability of the payer under this Clause
Appears in 1 contract
Samples: Sale and Purchase Agreement (TerraForm Power, Inc.)
