Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from: (i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date; (ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements; (iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or (iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns. (i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced. (ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2. (iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer. (c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority. (d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Wellgistics Health, Inc.), Membership Interest Purchase Agreement (Danam Health, Inc), Membership Interest Purchase Agreement (Danam Health, Inc)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any Purchaser from and against all Damages directly resulting from:
Taxes imposed on the Company: (i) for any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the prePre-Closing portion of any period that begins on or before and ends after the Closing Date;
Period; (ii) any Taxes of any other Person imposed on the Company pursuant to U.S. Treasury Regulations Section 1.1502-6 (or Buyer as a result comparable provision of state, local or foreign Law) solely by virtue of the Company Company’s being or having been a disregarded entity post-Closing) (A) as member of a result of any written consolidated, combined, or unitary Tax sharing or Tax allocation agreement in effect group on or prior to the Closing Date, (Biii) with respect to Taxes that arise in and are attributable to a Pre-Closing Period, as a transferee or successor, by contract or otherwise, (iv) with respect to Taxes that arise in and are attributable to a Post-Closing Period, as a transferee or successor, by contract or otherwise, in each case, but only to the extent such Taxes imposed on the Company as a transferee, successor, by contract or otherwise under applicable Legal Requirements relate to transactions entered into by the Company on or prior to the Closing Date outside the ordinary course of business; and (which v) for Transfer Taxes described allocable to Seller pursuant to Section 6.7, and (vi) for any Post-Closing Period as a result of the change in accounting method made by Paribas North America, Inc. with respect to the timing of deductibility of bonus payments (as reflected as item 5 of Schedule 3.9 hereof), with the amount of such Taxes calculated for purposes of this clause (vi) determined (A) by treating the Company on a stand alone basis (and not as a member of a combined, consolidated or unitary group), and (B) relate without regard to an event any available net operating loss carryovers from prior taxable years, and without regard to other items of income, gain, loss, or transaction occurring deduction with respect to the then current taxable year (but applying the net aggregate effective rate of Tax of the Company with respect to such Tax for such year to the income resulting from such change in accounting method); provided, that Seller shall not be liable, and shall not indemnify Purchaser, for any liability for Taxes (w) incurred as a result of a deemed or actual election under Section 338 of the Code with respect to the purchase of the Company pursuant to this Agreement; (x) that was reflected as a liability reducing Closing Working Capital, with such Closing Working Capital amount reduced by any amounts paid to Seller pursuant to clause (iii) of the second sentence of Section 6.8 and the last sentence of Section 6.8; (y) that is commercially reasonable for the Company to recover from a Person other than Purchaser or the Company (provided that the Seller shall agree to reimburse the Company for reasonable out of pocket costs incurred by the Company in connection with recovering such amounts); or (z) resulting from transactions or actions taken by Purchaser or by the Company at the request of Purchaser on or prior to the Closing Date.
(b) Purchaser shall be responsible for and shall pay or cause to be paid all Taxes relating to the Company for which Seller is not required to indemnify Purchaser pursuant to Section 6.4(a) (such Taxes, “Purchaser Taxes”). Purchaser and the Company shall indemnify and hold harmless Seller against all Purchaser Taxes and Transfer Taxes allocable to Purchaser pursuant to Section 6.7.
(c) All amounts paid by Seller or Purchaser pursuant to this Section 6.4 shall, to the extent permitted by applicable Law, be treated as adjustments to the Purchase Price for all Tax purposes.
(d) If Seller is required to make any indemnity payment under Section 6.4(a) or (C) by reason of being a memberSection 8.2, partner and the payment or similar owner of an equity interest event giving rise to such payment results in a partnershipU.S. federal, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
Tax benefit to Purchaser, the Company or its Affiliates, then (iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iva) any breach indemnity amount to be paid under Section 6.4(a) or Section 8.2 shall be reduced by such Tax benefit, net of or failure Taxes actually payable by the Company with respect to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing receipt of such fact; provided that any failure indemnity payment, actually realized prior to give such notice will not waive any rights of the Indemnified Taxpayer except indemnity payment, and (b) to the extent such Tax benefit is actually realized after Seller pays Purchaser such indemnity payment under Section 6.4(a) or Section 8.2, Purchaser shall pay Seller the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress amount of such claim and related proceedingsTax benefit, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel net of Taxes actually payable by the Company with respect to the receipt of such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts indemnity payment within fifteen (15) days after the defense receipt of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced or entitlement to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to payTax benefit. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer Purchaser and the applicable Indemnified Taxpayer may defend against, and consent to Company shall utilize any such Tax benefit unless in Purchaser’s or the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the Company’s good faith judgment of Buyersuch action would be materially adverse to Purchaser, the settlement ofCompany or its Affiliates and, or at the request and expense of Seller, such Tax benefit shall be verified in writing by an adverse judgment with respect to, independent public accounting firm selected by the claim would reasonably be expected to adversely affect Company. Purchaser and Seller agree that any Indemnified Taxpayer.
(c) Notwithstanding anything in indemnity payment under this Agreement shall, to the contraryextent permitted by applicable law, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice an adjustment to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityPurchase Price.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Envestnet, Inc.)
Indemnification for Taxes. (a) Seller Parties and WIMC shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from any and all Damages directly resulting fromIndemnifiable Losses to the extent constituting or arising out of Pre-Closing Taxes of the Transferred Companies.
(b) For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in the following manner:
(i) any in the case of Taxes other than real or personal property Taxes or other Taxes calculated on a periodic basis, such Taxes shall be allocated based on an interim closing of the Company books as of the Closing Date; and
(ii) in the case of real or personal property Taxes or other Taxes calculated on a periodic basis, the portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period. Any exemptions, allowances or deductions that are calculated on a periodic basis shall be apportioned on the same basis.
(c) For avoidance of doubt, any payment of estimated Taxes, or any other prepayment of Taxes, made by, or on behalf of or for the account of, any of the Companies before the Closing Date (including any deposit made in respect of Taxes) shall be treated as a payment of Taxes in respect of the income, gains, profits, business, property or operations of the applicable Company for a period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to or the pre-Closing portion of any period that begins Straddle Period ending on or before and ends after the Closing Date;Date and the amount that would otherwise be payable by Seller pursuant to this Agreement in respect of the relevant Tax had such payment or deposit not been made shall be reduced by the amount of any such payment.
(d) Buyer agrees to give prompt notice to Seller of any Indemnifiable Loss or the assertion of any claim or the commencement of any suit, action or proceeding in respect of which indemnity may be sought under this Section 8.1 (a “Tax Proceeding”) and will give Seller such information with respect thereto as Seller may reasonably request. Seller may (i) participate in and (ii) any Taxes upon written notice to Buyer, assume the defense of any suit, action or Tax Proceeding (including any Tax audit) that relates solely to a Pre-Closing Tax Period; provided that (x) Seller shall thereafter consult with Buyer upon Buyer’s reasonable request for such consultation from time to time with respect to such suit, action or proceeding (including any Tax audit) and (y) Seller shall not, without Buyer’s consent, agree to any settlement with respect to any Tax if such settlement could adversely affect the Tax liability of any Buyer Indemnified Person (including, effective upon the Closing, the Transferred Companies). If Seller assumes such defense, (i) Buyer shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by Seller and (ii) Seller shall acknowledge its responsibility for the Indemnifiable Loss, or any portion thereof, with respect to which Buyer seeks indemnification. For the avoidance of doubt, unless and until Seller notifies Buyer in writing of Seller’s decision to exercise the control and participation rights described in this Section 8.1(d), Buyer shall be entitled to take such actions as it decides are reasonable with respect to such suit, action or proceeding, including paying, compromising or contesting the Tax at issue. Seller shall be liable for the fees and expenses of counsel employed by Buyer for any period during which Seller has not assumed the defense thereof. Whether or not Seller chooses to defend or prosecute any claim, all of the parties hereto shall cooperate in the defense or prosecution thereof. Notwithstanding any other Person imposed on provision of this Section 8.1, Seller shall not be liable under this Section 8.1 with respect to any Indemnifiable Loss resulting from a claim or demand the Company (or Buyer defense of which Seller was not offered the opportunity to assume as provided under this Section 8.1(d), to the extent Seller’s liability under this Section 8.1 is actually and materially adversely affected as a result thereof. Notwithstanding anything to the contrary in this paragraph, with respect to any Tax Proceeding commenced with respect to a group filing or a Consolidated Tax Return, Seller shall control all proceedings and may make all decisions taken in connection with such Tax Proceeding (including selection of counsel) and, without limiting the Company being foregoing, may, in its sole discretion, pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Tax Authority with respect thereto, and may, in its sole discretion, either pay the applicable Tax liability and xxx for a disregarded entity postrefund or contest such Tax liability.
(e) Seller shall not be obligated to indemnify Buyer for any increase in Taxes with respect to any Post-Closing) (A) Closing Tax Period as a result of any written utilization of, or reduction in, any Tax sharing benefit, Tax attribute or Tax allocation agreement benefit item attributable to any Pre-Closing Tax Period (including any net operating loss, capital loss, tax deduction or tax credit arising in effect on or prior to the Pre-Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing DateTax Period), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers . Indemnification pursuant to Section 7.2(d); or
(iv8.1(a) shall be determined without regard to any breach of or failure to perform any representationTax benefit, warranty, covenant or agreement in this Agreement relating to Taxes Tax attribute or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect benefit item attributable to any indemnification obligation for any Post-Closing Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees Period (including any penalties and interest) incurred net operating loss, capital loss, tax deduction or tax credit arising in connection with this Agreement (“Transfer Taxes”any Post-Closing Tax Period), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Walter Investment Management Corp), Stock Purchase Agreement (Walter Investment Management Corp)
Indemnification for Taxes. (a) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to Holders shall indemnify the Parent Indemnitees, without duplication, from any Damages suffered or paid, directly or indirectly, as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
a result or arising out of (i) any Taxes Tax of any Person (other than any member of the ICG Consolidated Group or an Acquired Company) imposed on an Acquired Company allocable as a transferee or successor, by contract (other than any contract, agreement or arrangement a principal purpose of which is not the allocation or sharing of Taxes) or pursuant to any period ending on or prior to Law (including Section 1.1502-6 of the Closing Date or, as provided in Section 7.3(bTreasury Regulations), allocable which Tax relates to the pre-Closing portion of any period that begins on an event, status or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (transaction occurring or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect existing on or prior to the Closing Date; (ii) any Tax of any Acquired Companies for any Pre-Closing Tax Period (or portion thereof); (iii) any Transfer Taxes that are not the obligation of Parent under Section 7.8(g) and any other income Tax imposed on any Holder as a result of the consummation of the transactions contemplated by this Agreement; and (iv) any breach of any covenant set forth in Section 7.8.
(b) From and after the Closing, ICG Group shall indemnify the Parent Indemnitees, without duplication, from any Damages suffered or paid, directly or indirectly, as a result or arising out of (Bi) any Acquired Company being a member of the ICG Consolidated Group and (ii) any Tax of any member of the ICG Consolidated Group (other than an Acquired Company), imposed on an Acquired Company as a transferee or successor, by contract (other than any contract, agreement or otherwise under applicable Legal Requirements arrangement a principal purpose of which is not the allocation or sharing of Taxes) or pursuant to any Law (including Section 1.1502-6 of the Treasury Regulations), which Taxes described in this clause (B) relate Tax relates to an event event, status or transaction occurring or existing on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the The indemnification obligations of the Seller Parties under this Article VI Section 9.10 shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end expiration of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, Parent Indemnitees shall not be entitled to indemnification pursuant to this Section 9.10 for any Taxes to the extent such Taxes were included as a Current Liability on the one handPreliminary Closing Statement in the Company’s actual calculation of Preliminary Net Working Capital (without giving effect to whether the Preliminary Net Working Capital exceeds the Maximum Net Working Capital) as finally adjusted pursuant to Sections 2.7(b) and 2.7(c).
(e) For purposes of this Agreement, in the case of any Straddle Period, the amount of Taxes for the portion of such period that is a Pre-Closing Tax Period shall (A) in the case of any Tax based on income or receipts, or payments giving rise to a withholding obligation, be determined on the basis of a deemed closing of the books and records of the Company and its Subsidiaries as of the close of business on the Closing Date, and Buyer, on (B) in the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees case of any Tax not covered by clause (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”A), be equal to the amount of such Tax for the entire Pre-Closing Tax Period multiplied by a fraction, the numerator of which is the number of days in such period prior to and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer willincluding the Closing Date, and will cause its Affiliates to, join the denominator of which is the total number of days in the execution of any such Tax Returns and other documentationperiod.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Icg Group, Inc.)
Indemnification for Taxes. (a) Seller Parties shallThe Stockholder hereby agrees to indemnify, jointly and severally, indemnify Buyer GenuTec and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Losses”) resulting from:
(i) A final award and judgment granted to any taxing authority in a court of competent jurisdiction for (A) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date, and (B) any Taxes of the Company or any corporation that is or was a member of an Affiliated Group of which the Company was or is a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result Mergers and sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company’s Stock pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d9.2(c); or
(iv) , upon notice from GenuTec to the Stockholder that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 9.2(a), the Stockholder shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Stockholder in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative The Stockholder shall have the right and option (but not the obligation) to defend the Stockholder and/or the Indemnified Taxpayer against any claim under subsection (b)(i) at Sellers’ expense and made by any taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer with counsel of Seller Representative’s choice satisfactory to the Indemnified Taxpayer so long as the Indemnified Taxpayer is requested to pay the Tax claimed, the Stockholder will pay the Indemnified Taxpayer or the taxing authority, as appropriate, the full amount the Indemnified Taxpayer is required to pay.
(Aiii) Buyer The Indemnified Taxpayer shall not settle any claim made by any taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer for which the Stockholder is kept reasonably informed liable to indemnify without, in each instance, the prior written approval of the status Stockholder; provided, however, that if the Stockholder shall object to any proposed settlement, thereafter, if requested by the Indemnified Taxpayer, the Stockholder shall assume, at his sole cost and progress expense, the defense of any such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts tax claim. Each of the Indemnified Taxpayer and/or the Stockholder shall conduct the defense of the claim actively and diligently, and .
(Div) Stockholder shall not be entitled to settle or to contest any claim relating to Taxes if the applicable Indemnified Taxpayer is requested to pay settlement of, or an adverse judgment with respect to, the Tax claimed and sue for a refundclaim would be likely, and if so requested by Bxxxx, Sellers shall have advanced to such in the good faith judgment of the Indemnified Taxpayer, on to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) If the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an interest free basisadministrative agency having jurisdiction thereof that has become final, Stockholder shall promptly pay the Indemnified Taxpayer in full for all Losses or Tax claims assessed against the Indemnified Taxpayer. Conversely, the full amount such Indemnified Taxpayer is requested shall promptly pay to payStockholder any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayers with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before such time as Stockholder shall have made all payments or indemnities then due with respect to Indemnified Taxpayer pursuant to this Article VIII.
(vi) If any of the conditions in clauses Section 9.2(c)(ii) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or Seller Representative Stockholder in connection therewith), (yB) Sellers Stockholder will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements) and (zC) Sellers Stockholder will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.29.2.
(iiid) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Stockholder under this Article VI IX shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party Stockholder by providing written notice to Seller Representative Stockholder on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(de) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by Stockholder when due, and Seller Representative will Stockholder will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxestransfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal Requirementslaw, Buyer GenuTec will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GenuTec Business Solutions, Inc.), Agreement and Plan of Merger (GenuTec Business Solutions, Inc.)
Indemnification for Taxes. (a) Seller Parties shall, jointly shall indemnify and severally, indemnify hold harmless the Buyer Indemnified Persons from and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protectreimburse each such Person for (together with all reasonable fees, save expenses and hold harmless each Indemnified Taxpayer fromcosts relating thereto), any and all Damages directly resulting fromwithout duplication:
(i) any Taxes or other Indemnifiable Losses resulting from any breach as of the Company allocable to any period ending on date of this Agreement or prior to as of the Closing Date or, (as provided in Section 7.3(b), allocable to the pre-Closing portion though made on and as of any period that begins on or before and ends after the Closing Date) of any representation or warranty of Seller contained in Section 3.10 (provided that for this purpose, such representations and warranties shall be read without regard to any materiality qualification contained therein);
(ii) any Taxes attributable to or resulting from any breach or nonfulfillment of any other Person imposed on the Company (agreement or Buyer as a result covenant of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successorSeller, or otherwise under applicable Legal Requirements the Transferred Companies (which Taxes described in this clause (B) relate to an event or transaction occurring on at or prior to the Closing Date), relating to Taxes contained in this Agreement;
(iii) any Taxes of, imposed on or relating to any of the Transferred Companies for any Pre-Closing Tax Period (Cfor the avoidance of doubt this shall include any Taxes imposed as result of the sale of the Shares, the transactions contemplated by the Separate Sales Agreements, any internal restructuring by Seller in anticipation of such sales, or the Alternative Structure);
(iv) any Taxes of Persons (other than the Transferred Companies) for which the Transferred Companies, Buyer or any of their Affiliates are liable (A) by reason of being a member, partner or similar owner the application of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6 and any corresponding provision of state, local, or foreign law or (B) that result from a failure by any Seller Party to properly withhold Taxes on payments with respect to any Pre-Closing Tax Period;
(v) any Taxes for any Post-Closing Tax Periods that are imposed on or collected from the Transferred Companies, Buyer or any of their Affiliates as a transferee of or successor to a Transferred Company, pursuant to any law, rule or regulation, imposed on taxable income or gain that is attributable, in whole or in part, to events or transactions that occur on or before the Closing Date but that are recognized for tax purposes in a Post-Closing Tax Period as a result of (v) the installment method of accounting, (w) the completed contract method of accounting, (x) the long-term contract method of accounting, (y) the recapture of a dual consolidated loss, or (z) Section 481 of the Code (other than any such Taxes imposed by reason of a change in accounting method by the Transferred Companies or a successor to the Transferred Companies made or applied for by Buyer or any of its Affiliates after the Closing Date);
(vi) any Tax Losses for any Post-Closing Tax Period that are required to be borne by Seller pursuant to Section 8.8(a) and, without duplication, amounts for which Seller is required to compensate Buyer pursuant to Section 8.8(c); and
(vii) any Conveyance Taxes required to be borne by Seller pursuant to Section 8.4.
(b) Buyer agrees to indemnify and hold harmless the Seller Indemnified Persons from and against, and reimburse each such person for (together with all reasonable fees, expenses and costs relating thereto):
(i) any Taxes for any Post-Closing Tax Period imposed on or payable with respect to the Transferred Companies other than Taxes subject to indemnification by Seller pursuant to Section 8.1(a)(v) and (vi); and
(ii) any Conveyance Taxes required to be borne by Buyer pursuant to Section 8.4.
(c) For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in the following manner:
(i) in the case of Taxes based on or measured by income, gain, or receipts, or related to the actual or deemed sale or transfer of property, or which are withholding Taxes, or are premium Taxes, such Taxes shall be allocated based on an interim closing of the books as of the end of the Closing Date; and
(ii) in the case of Taxes calculated on a periodic basis, the portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period. For the avoidance of doubt, the parties hereto agree that neither party will make a ratable allocation election under Treas. Reg. § 1.1502-76(b)(2)(ii) or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion law with respect to Straddle Periods. In accordance with Treas. Reg. § 1.1502-76 and any analogous provision of state, local or foreign law, any Transfer Taxes that are the responsibility of Sellers pursuant Tax related to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made an extraordinary transaction (not contemplated by any Tax Authority thatthis Agreement to occur on the Closing Date) that occurs on the Closing Date after the Closing, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
or (ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel transaction effected by reason of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved a binding commitment entered into by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent Transferred Company prior to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer Closing shall be allocated to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Post-Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityPeriod.
(d) Sellers, on Buyer hereby acknowledges that Seller makes no representation or warranty as to the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution existence or amount of any net operating loss carryforwards of the Transferred Companies to the extent that the Transferred Companies were compensated for such net operating loss carryforwards prior to the Closing Date under the Radian Group Inc. Allocation of Consolidated Tax Returns and other documentationLiability Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Assured Guaranty LTD), Stock Purchase Agreement (Radian Group Inc)
Indemnification for Taxes. (a) From and after the Closing Date, the Seller Parties shallshall protect, jointly and severallydefend, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, the Buyer and Compression from any and all Damages directly resulting from:
Taxes (including any obligation to contribute to the payment of any Taxes determined on a consolidated, combined or unitary basis with respect to a Seller's Group of corporations that includes or included Compression) which are (i) imposed on the Seller or any Taxes member (other than Compression) of the Company allocable to consolidated, unitary or combined Seller's Group which includes or included Compression or (ii) imposed on Compression in respect of its income, business, property or operations or for which Compression may otherwise be liable (A) for any taxable period ending on or before the Closing Date (except for those periods described in Section 9.4) and for any Pre-Closing Period (as defined and determined in Section 9.5), provided however that to the extent that a liability for such taxes has been accrued and included in Closing Date Net Assets, then Seller shall have no obligation to make such tax payment, (B) resulting by reason of the several liability of Compression pursuant to Treasury Regulations section 1.1502- 6 or any analogous state, local or foreign law or regulation or by reason of Compression having been a member of any consolidated, combined or unitary Seller's Group on or prior to the closing Date, or (C) resulting from Compression ceasing to be a member of the affiliated Seller's Group (within the meaning Section 1504(a) of the Code) that includes the Seller.
(b) In the case of any audit, examination or other proceeding ("Proceeding") with respect to Taxes for which the Seller is or may be liable pursuant to this Agreement, the Buyer shall promptly inform the Seller, and shall afford the Seller, at the Seller's expense, the opportunity to control the conduct of such Proceedings, provided that the Buyer shall retain the right to control all proceedings for all periods that end after the Closing Date. The Buyer shall execute or cause to be executed powers of attorney or other documents necessary to enable the Seller to take all actions desired by the Seller with respect to such Proceeding to the extent such Proceeding may affect the amount of Taxes for which the Seller is liable pursuant to this Agreement. The Seller shall have the right to control any such Proceedings, and, if there is substantial authority therefor, to initiate any claim for refund, file any amended Return or take any other action which it deems appropriate with respect to such Taxes. Notwithstanding the foregoing, the Seller shall not agree to any settlement concerning Taxes for any taxable period ending on or before the Closing Date orwhich may result in a material increase in Taxes for any taxable period ending after the Closing Date without the prior written consent of the Buyer. By written notice to the Seller, as provided in Section 7.3(bthe Buyer shall have the right to instruct the Seller to forego Proceedings with respect to one or more items for which the Seller may be liable to indemnify the Buyer. Such notice shall constitute a waiver of the right of the Buyer to indemnification for any Taxes arising out of such item for the period or periods involved, but shall not otherwise waive any rights of the Buyer under this Section.
(c) If the Buyer receives, or is entitled to receive, any refund of Taxes (either by actual receipt or by application against future Taxes of Compression), allocable then the Buyer shall pay to the preSeller the portion of such refund that (i) relates to the Pre-Closing portion Period of any taxable period that begins on or before and ends after the Closing Date;
Date (as defined and determined pursuant to Section 9.5) or (ii) relates to any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or taxable period that ends prior to or on the Closing Date, (B) as a transferee or successorprovided however that to the extent an anticipated refund has been included in Net Assets, or otherwise under applicable Legal Requirements (which Taxes then Buyer shall not be required to pay over such refund to Seller. Any payment described in this clause (BSection 9.7(c) relate to an event or transaction occurring on or prior shall be made by the Buyer to the Closing Date), or Seller within thirty (C30) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights days of the Indemnified Taxpayer except to date on which the extent Buyer receives the rights refund of the indemnifying party are actually materially prejudicedTaxes.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Universal Compression Inc), Stock Purchase Agreement (Universal Compression Holdings Inc)
Indemnification for Taxes. (a) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the ClosingInitial Closing Date, the Company (each herein sometimes referred to as an “Sellers will indemnify the Purchaser Indemnified Taxpayer”), against, Parties from and protect, save and hold harmless each Indemnified Taxpayer from, against any and all Damages directly Losses arising out of or resulting from:
from (i) any income Taxes of imposed on the Company allocable to any period ending on or prior to the for a Pre-Initial Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Tax Period; (ii) any Taxes of any other another Person imposed on the Company (A) under Treasury Regulations Section 1.1502-6 (and any similar provision of state, local, or Buyer foreign Law) as a result of the Company being a disregarded entity post-Closing) (A) as a result member of any written Tax sharing consolidated, unitary, combined or Tax allocation agreement in effect on or similar group at any time prior to the Initial Closing Date, or (B) as a transferee or successorsuccessor as a result of a transaction occurring prior to the Initial Closing or by contract entered into prior to the Initial Closing (other than as a result of any customary Tax indemnity, sharing or otherwise allocation agreement pursuant to an agreement whose primary subject is not Taxes); (iii) any Taxes of the Sellers imposed on Purchaser as a result of any transactions occurring on the Initial Closing Date; (iv) Taxes imposed on the Company arising from, related to or attributable to the breach or nonperformance of the covenants provided in Section 7.1(j) prior to the Initial Closing; and (v) Taxes imposed on the Company arising from any breach of any representation or warranty, as of the Initial Closing, made by the Company contained in Section 4.16; provided, however, that the Sellers will not be liable under applicable Legal Requirements this Section 10.1(a) for any (w) Losses relating to Taxes to the extent that such Taxes were reflected in the Transaction Expenses; (x) Losses arising out of or resulting from any Taxes arising in a Post-Initial Closing Tax Period; (y) Losses relating to Taxes arising from an election made by Purchaser or any of its Affiliates under Section 338 of the Code with respect to the transactions contemplated by this Agreement or any other transaction occurring after the Initial Closing at the direction of Purchaser and not expressly provided for and permitted by this Agreement; or (z) Taxes for which Purchaser is responsible under Section 10.1(c). Except with respect to the Losses relating to Taxes described in this clause (Biii) relate of this Section 10.1(a), which will be the sole responsibility of the Sellers, the Sellers’ indemnification obligations under this Section 10.1(a) will be limited to an event or transaction occurring on or prior to Sellers Loss.
(b) From and after the Final Closing Date), the Sellers will indemnify the Purchaser Indemnified Parties from and against any and all Losses arising out of or resulting from (Ci) by reason income Taxes imposed on the Company for a Pre-Final Closing Tax Period; (ii) Taxes of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to another Person imposed on the Company (A) under Treasury Regulation Regulations Section 301.77011.1502-3 or 6 (and any similar provision of state, local local, or foreign Legal Requirements;
Law) as a result of the Company being a member of any consolidated, unitary, combined or similar group at any time prior to the Final Closing or (B) as a transferee or successor as a result of a transaction occurring prior to the Final Closing or by contract entered into prior to the Final Closing (other than as a result of any customary Tax indemnity, sharing or allocation agreement pursuant to an agreement whose primary subject is not Taxes); (iii) any Taxes of the portion respective Final Sellers imposed on Purchaser as a result of any transactions occurring on the Final Closing Date; (iv) Taxes imposed on the Company arising from, related to or attributable to the breach or nonperformance of the covenants provided in Section 7.1(j) prior to the Final Closing; and (v) Taxes imposed on the Company arising from any breach of any representation or warranty made by the Company contained in Section 4.16 as of the Final Closing; provided, however, that the Sellers will not be liable under this Section 10.1(b) for any (w) Losses relating to Taxes to the extent that such Taxes were reflected in the Transaction Expenses; (x) Losses arising out of or resulting from any Taxes arising in a Post-Final Closing Tax Period; (y) Losses relating to Taxes arising from an election made by Purchaser or any of its Affiliates under Section 338 of the Code with respect to the transactions contemplated by this Agreement or any other transaction occurring after the Final Closing at the direction of Purchaser and not expressly provided for and permitted by this Agreement; or (z) Taxes for which Purchaser is responsible under Section 10.1(c). Except with respect to the Losses relating to Taxes described in clause (iii) of this Section 10.1(b), which will be the sole responsibility of the Sellers, the Sellers’ indemnification obligations under this Section 10.1(b) will be limited to the Sellers’ Loss. For the avoidance of doubt, the Sellers will not have any obligation or liability to the Purchaser Indemnified Parties pursuant to this Section 10.1(b) if the Final Closing does not occur.
(c) From and after the Initial Closing, Purchaser will pay or cause to be paid, and will indemnify and hold each Seller Indemnified Party harmless from and against (i) any Taxes resulting from any breach of any covenant or agreement of Purchaser contained in this Agreement or any breach of any covenant or agreement, occurring after the Final Closing, of the Company contained in any Transaction Agreement; (ii) any Transfer Taxes that are the responsibility of Sellers pursuant to for which Purchaser is responsible under Section 7.2(d)10.3; or
and (iviii) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
Losses described in any of clauses (i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedingsw), (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and or (z) Sellers will remain responsible for any Damages Buyer of the proviso contained in Section 10.1(a) or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
of clauses (iiiw), (x), (y) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(cz) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authorityproviso contained in Section 10.1(b).
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 2 contracts
Samples: Stock Purchase Agreement (AtlasClear Holdings, Inc.), Stock Purchase Agreement (Calculator New Pubco, Inc.)
Indemnification for Taxes. (ai) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the ClosingClosing Date, and except to the extent that Parent is liable therefor pursuant to the Asset Purchase Agreement or Section 7.4(d)(ii), the Company (each herein sometimes referred to as an “Indemnified Taxpayer”)SunGard Entities, againston a joint and several basis, shall be liable for and pay, and protectshall indemnify, save defend and hold harmless each the Datatel Indemnified Taxpayer from, Parties from and against:
(A) any and all Damages directly resulting from:
(i) any Taxes of the Company allocable Entities for (A) any Pre-Closing Tax Period, and (B) with respect to any period Straddle Period, the portion thereof ending on or prior to and including the Closing Date or, (as provided in determined under Section 7.3(b7.4(b)(iv) and (v), allocable ) (including any Taxes resulting from the sale of the SMS Business pursuant to the pre-Closing portion of any period that begins on or before and ends after the Closing DateAsset Purchase Agreement);
(iiB) any and all Taxes of any other Person imposed under Treasury Regulation Section 1.1502-6 or under any comparable or similar provision of state, local or foreign Tax Law on the a Company (or Buyer Entity as a result of the such Company Entity being a disregarded entity post-Closing) (A) as member of a result of any written Tax sharing consolidated, combined, affiliated or Tax allocation agreement in effect unitary group on or prior to the Closing Date, (B) or as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate pursuant to any law, rule or regulation relating to an event or transaction occurring on or prior to the Closing Date)or pursuant to a Tax sharing or indemnity agreement, or similar arrangement (other than agreements or arrangements entered into in the ordinary course of business as arm’s-length commercial agreements or arrangements that do not relate primarily to Taxes, such as loan or leasing agreements) entered into by a Company Entity prior to the Closing;
(C) any and all Taxes of the Company Entities or Parent resulting from any breach by reason Seller of being the covenant contained in Section 7.1(b)(xiii) of this Agreement;
(D) any and all Taxes of the Company Entities or Parent for any Pre-Closing Tax Period or the portion of a memberStraddle Period ending on and including the Closing Date resulting from a breach by the SunGard Entities or the Company of the representations and warranties contained in Section 5.9;
(E) any Transfer Taxes and Taxes in respect of the Restructuring for which Seller is liable pursuant to Section 7.4(a); and
(F) any reasonable out-of-pocket costs and expenses related to the items in (A) through (E) above.
(ii) Parent, partner the Purchaser Company and the Company, on a joint and several basis, shall be liable for and pay, and shall indemnify, defend and hold harmless the SunGard Indemnified Parties from and against:
(A) any and all Taxes of the Company Entities for (A) any Post-Closing Tax Period, and (B) with respect to any Straddle Period, the portion thereof beginning after the Closing Date (as determined under Section 7.4(b)(iv));
(B) any and all Taxes of the Company Entities for (A) any Pre-Closing Tax Period or (B) with respect to any Straddle Period, the portion thereof ending on or before the Closing Date (as determined under Section 7.4(b)(iv)) in each case resulting from Tax elections made by Parent or any Company Entity or any of their Affiliates after the Closing or any actions on the Closing Date after the Closing, in each case not made in the ordinary course of business of the Company Entities or other than as explicitly contemplated by this Agreement or the Asset Purchase Agreement;
(C) the excess of (1) the amount of any and all U.S. federal income Taxes payable by the SunGard Capital consolidated group for the taxable year which includes the Closing Date or any other Taxable Period as a result of the transactions contemplated by the Asset Purchase Agreement and this Agreement, including the sale and purchase of the SMS Business and the Merger (including any such U.S. federal income Taxes payable in any Taxable Period as a result of losses, deductions, credits or carryovers of losses or credits (“Tax Benefit Items”) having been used to offset income or gain, or to reduce Taxes of the SunGard Capital consolidated group resulting, from such transactions) over (2) the amount of U.S. federal income Taxes that would have been payable by the SunGard Capital consolidated group for the taxable year which includes the Closing Date or such other Taxable Period if there had been no Asset Purchase Agreement and the Company Common Stock had been transferred pursuant to the Merger for $1,775,000,000, as adjusted pursuant to Section 2.2 (with such adjustment determined as if the Asset Purchase Agreement had terminated pursuant to Section 9.1(b) thereof) (including any such U.S. federal income Taxes payable in any Taxable Period as a result of any Tax Benefit Item having been used to offset income or gain, or to reduce Taxes of the SunGard Capital consolidated group resulting, from such transfer); provided that Taxes payable as the result of receiving an indemnity payment pursuant to this Agreement (including amounts payable to gross up for Taxes on receipt of an indemnity payment) shall not be taken into account in determining the amount indemnifiable pursuant to this Section 7.4(d)(ii)(C);
(D) the excess of (1) the amount of any and all foreign or U.S. state or local income, franchise or similar owner Taxes (based in whole or in part on net income) payable by any Company Entity, SunGard Capital or any Subsidiary of SunGard Capital for the taxable year which includes the Closing Date or any other Taxable Period as a result of the transactions contemplated by the Asset Purchase Agreement and this Agreement, including the sale and purchase of the SMS Business and the Merger (including any such Taxes payable in any Taxable Period as a result of any Tax Benefit Item having been used to offset income or gain, or to reduce Taxes of any Company Entity, SunGard Capital or any Subsidiary of SunGard Capital resulting, from such transactions) over (2) the amount of any such foreign or U.S. state or local income, franchise or similar Taxes (based in whole or in part on net income) determined to be payable by any Company Entity, SunGard Capital or any Subsidiary of SunGard Capital for any Taxable Period by reporting such transactions for such Tax purposes in a manner consistent with the terms of the Asset Purchase Agreement (including the sale of the SMS Business), this Agreement (including the Merger) and, to the extent relevant, the IRS Ruling (including any such Taxes payable in any Taxable Period as a result of any Tax Benefit Item having been used to offset income or gain, or to reduce Taxes of any Company Entity, SunGard Capital or any Subsidiary of SunGard Capital resulting, from such transactions); provided that Taxes payable as the result of receiving an indemnity payment pursuant to this Agreement (including amounts payable to gross up for Taxes on receipt of an equity interest indemnity payment) shall not be taken into account in a partnership, limited liability company or other entity classified as a partnership determining the amount indemnifiable pursuant to Treasury Regulation this Section 301.7701-3 7.4(d)(ii)(D);
(E) any Transfer Taxes for which Parent or the Purchaser Company is liable pursuant to Section 7.4(a); and
(F) any reasonable out of pocket costs and expenses related to the items in (A) through (E) above.
(iii) Payment by the indemnifying Party of any amount under this Section 7.4(d) shall be made no later than the later of ten (10) days after written notice by the indemnified Party, which notice shall provide in reasonable detail the amount due to the relevant taxing authority and an explanation therefor, and three (3) days before payment is due to the relevant taxing authority; provided that in the case of a Tax that is contested in accordance with Section 7.4(c), payment of the Tax to the appropriate taxing authority will be considered due no earlier than the date of a determination, within the meaning of Section 1313 of the Code (or any similar comparable provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant law), to Section 7.2(d); orsuch effect or such other final, binding settlement with a taxing authority.
(iv) any breach In the event the Asset Purchase Agreement has terminated, Parent and the Company shall have no obligation to indemnify the SunGard Indemnified Parties pursuant to Section 7.4(d)(ii)(C) or Section 7.4(d)(ii)(D), and such Sections shall have no effect. For the avoidance of or failure to perform any representationdoubt, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnsthe applicability of Section 7.4(d)(ii)(C) and Section 7.4(d)(ii)(D) shall not be limited by reason of the receipt of the IRS Ruling.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(cv) Notwithstanding anything to the contrary in this Agreement to Agreement, this Section 7.4 shall be the contrary, the sole provision governing indemnification obligations of the Seller Parties for Taxes under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityAgreement.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 2 contracts
Samples: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, Inc.)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any the Buyer Indemnitees from and all Damages directly resulting from:
against: (i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the preTransferred Entities for all Pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Tax Periods, (ii) any Excluded Tax Liabilities, (iii) Taxes arising out of any other Person breach of any covenant made by any Selling Corporation in this Agreement, (iv) Seller VAT, (v) Transfer Taxes that are the responsibility of Seller under Section 9.4, (vi) Taxes imposed on the Company (or Buyer as a result income required to be included under Section 951 of the Company being Code with respect to a disregarded entity postTransferred Entity for a Pre-ClosingClosing Tax Period (including by reason of Section 956 of the Code) (A) determined as a result if the taxable year of any written Tax sharing or Tax allocation agreement in effect the Transferred Entity closed on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), (vii) Taxes or (C) by reason any other out-of-pocket costs and expenses incurred as a consequence of being a member, partner any attempted or similar owner of an equity interest in a partnership, limited liability company consummated Like-Kind Exchange or other entity classified as a partnership action undertaken pursuant to Section 9.11, (viii) Taxes arising from or attributable to any Restructuring Transaction or any other transactions or activities contemplated by Section 7.14, (ix) Taxes arising under Section 1.1502-6 of the Treasury Regulation Section 301.7701-3 Regulations or any similar provision of state, local or foreign Legal Requirements;Law by virtue of any Transferred Entity having been a member of a consolidated, combined, affiliated, unitary or other similar tax group prior to the Closing, (x) payments in respect of Taxes made by any Transferred Entity under any Tax indemnity, Tax sharing or other similar agreement entered into prior to the Closing but following the xxxx Xxxxxx or any of its Affiliates acquired control of such Transferred Entity, and (xi) Legacy Liabilities or Seller Business Liabilities, in each case to the extent (A) of Taxes imposed on a disposed of or discontinued business, or line of business, or on the disposition or discontinuance thereof, or (B) relating to indemnity obligations entered into prior to Closing and payable to third parties in respect of Taxes described in clause (xi)(A); in each case other than Taxes arising out of (I) any breach of any Tax Covenant made by Buyer or any Buyer Corporation or (II) any action taken outside the ordinary course of business by Buyer or any of its Affiliates after the Closing but on the Closing Date except to the extent such action was expressly contemplated by this Agreement; provided that Seller shall not be responsible for indemnifying Buyer under clause (i) or (ii) of this Section 9.1(a) for Taxes that are specifically the responsibility of Buyer under this Agreement. For the avoidance of doubt, to the extent Seller is required to indemnify Buyer with respect to any Taxes in respect of which Brazil Judicial Deposits are outstanding, Seller’s indemnification obligation under this Section 9.1(a) with respect to such Taxes shall not be reduced by the amount of any such Brazil Judicial Deposits applied in satisfaction of such Taxes. Notwithstanding that a claim for Taxes or Losses may fall into multiple categories of this Section 9.1(a), a Buyer Indemnitee may recover such Taxes and Losses one time only. The amount of Taxes described in clauses (i) and (ii) of this Section 9.1(a) shall be computed without regard to any Tax Attribute to the extent that it is attributable to, arises from or relates to any Post-Closing Tax Period. Notwithstanding any other provision of this Agreement and for the avoidance of doubt, the limitations in Section 10.4 shall not apply to this Section 9.1(a).
(b) Buyer shall indemnify and hold harmless the Seller Indemnitees from and against (i) Taxes of the Transferred Entities for all Post-Closing Tax Periods, (ii) Taxes (other than income Taxes) imposed on the Transferred Assets for any Post-Closing Tax Period, (iii) Taxes arising out of any breach of any covenant made by Buyer or any Buyer Corporation, (iv) Taxes arising out of any action taken outside the portion ordinary course of business by Buyer or any of its Affiliates after the Closing but on the Closing Date, except to the extent such action was expressly contemplated by this Agreement, (v) VAT (other than Seller VAT) payable under Section 9.3 and (vi) any Transfer Taxes that are the responsibility of Sellers Buyer pursuant to Section 7.2(d)9.4; or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
provided that Buyer shall not be responsible for indemnifying Seller under clause (i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
or (ii) Seller Representative shall have of this Section 9.1(b) for Taxes that are specifically the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel responsibility of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed under this Agreement. Notwithstanding that a claim for Taxes may fall into multiple categories of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewiththis Section 9.1(b), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer a Seller Indemnitee may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to recover such Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayerone time only.
(c) Notwithstanding anything in any other provision of this Agreement (including, for the avoidance of doubt, Sections 9.3 and 9.4), if the transfer of the Business in the Netherlands is consummated under this Agreement as a transfer of assets (and assumption of liabilities), as opposed to a transfer of equity interests, then Seller shall indemnify and hold harmless the Buyer Indemnitees from and against any Taxes (other than VAT that is not Irrecoverable VAT) arising out of such transfer to the contraryextent that the amount of such Taxes payable by the Buyer Indemnitees, in the indemnification obligations aggregate, exceeds the aggregate amount of Taxes (other than VAT that is not Irrecoverable VAT) that would have been payable by the Buyer Indemnitees had the transfer of the Seller Parties Business in the Netherlands been consummated under this Article VI shall survive the Closing until sixty (60) days following the end Agreement as a transfer of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authorityequity interests.
(d) SellersAny indemnity payment for Taxes to be made pursuant to Section 3.1(b)(v) or this Section 9.1 shall be paid within 10 Business Days (or, on if such payment is to exceed $2 million, 20 Business Days) after any Buyer Indemnitee or Seller Indemnitee claiming it is entitled to indemnification under Section 3.1(b)(v) or this Article 9 (the one hand, and Buyer, on “Indemnified Tax Party”) makes written demand upon the other hand, shall divide evenly party (the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer TaxesIndemnifying Tax Party”), and Seller Representative will file all necessary but in no case earlier than five Business Days prior to the date on which the relevant Taxes (including, for the avoidance of doubt, any estimated Tax Returns and other documentation with respect payments or Tax deposits) are required to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in be paid to the execution of any such Tax Returns and other documentationrelevant Governmental Authority.
Appears in 1 contract
Indemnification for Taxes. The Indemnifying Holders hereby agree, or have otherwise agreed in writing, to severally (aand not jointly) Seller Parties shallindemnify, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save defend and hold harmless each Indemnified Taxpayer the Parent Indemnitees on an after tax basis from and against: (A) all Taxes, losses, claims and expenses resulting from, arising out of, or incurred with respect to, any claims that may be asserted by any party based on, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 3.12 (without giving effect to any “material,” “materially,” “materiality,” “Material Adverse Effect,” “material adverse effect,” “material adverse change,” Knowledge or similar qualifier contained in any such representation or warranty) to be true and correct in all Damages directly resulting from:
respects as of the date of this Agreement and as of the Closing Date; (iB) all Taxes imposed on, asserted against or attributable to the properties, income or operations of the Company and its Subsidiaries or any Taxes for which the Company and its Subsidiaries are otherwise liable, for all Pre-Closing Periods; (C) all Taxes imposed on the Company and the its Subsidiaries as a result of the provisions of Treasury Regulations Section 1.1502-6 or the analogous provisions of any state, local or foreign law; (D) all Taxes imposed on the Company and its Subsidiaries, or for which the Company and its Subsidiaries may be liable, as a result of any transaction contemplated by this Agreement; and (E) all Taxes imposed on any payments made pursuant to this Agreement or made pursuant to the Escrow Agreement; provided that, solely for this clause E, each Indemnifying Holder is responsible solely for the amount of Taxes imposed on payments with respect to such Holder; provided that the Indemnifying Holders shall have no obligation to indemnify for any Taxes of the Company allocable or its Subsidiaries attributable to any period ending (i) Section 338(g) election (or similar election) made by Parent with respect to the Merger, (ii) transfer of assets or other action not contemplated by this Agreement taken or caused to be taken by Parent outside of the ordinary course of business on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends but after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (Effective Time or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer withholding Taxes that are the responsibility of Sellers due with respect to amounts payable pursuant to Section 7.2(d); or
(iv2.5(b) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved Company Options held by Buyer in its reasonable discretion and Seller Representative conducts the defense current employees, directors or consultants of the claim actively and diligentlyCompany. For the avoidance of doubt, and (D) if the applicable Indemnified Taxpayer is requested each Indemnifying Holder's obligation to pay the Tax claimed and sue indemnify for a refund, and if so requested by Bxxxx, Sellers Taxes under this Section 7.3 shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent be subject to the entry same maximum liability as applies to Specified Claims pursuant to Section 9.4 of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2Agreement.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Sale and Purchase of Shares Agreement (Nice Systems LTD)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after 8.2.1 To the extent not accrued as a liability on the Company’s balance sheet at the time of Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”)Seller shall indemnify Buyer, againstCompany, and protect, save their respective Affiliates and hold each of them harmless each Indemnified Taxpayer from, any (on an after-Tax basis) from and all Damages directly resulting from:
against (i) any and all Taxes of the Company allocable to (or any predecessor company thereto or any subsidiary) in respect of any period ending on or before the Closing Date, or in the case of a period that includes but does not end at the Closing Date, the portion thereof prior to and including the Closing Date or(such period or portion, as provided in Section 7.3(b), allocable to the prea “Pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Period”); (ii) any and all Taxes for which the Company may be or become liable by reason of (1) being a member of an affiliated, combined, consolidated, or unitary group at any time prior to the Closing, including under Treasury Regulation Section 1.1502-6 or any analogous or similar provision under any state, local, or foreign Tax Law or (2) being a successor-in-interest or transferee of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), Closing; or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion effect of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of a representation in Section 5.13 or failure to perform any representation, warranty, covenant in Section 11.2 or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel other covenant with respect to such claim is approved by Buyer Taxes, in its each case, all reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursementsrelated disbursements and expenses) and (z) Sellers will remain responsible for any Damages Buyer incurred by Company, Buyer, or any other Indemnified Taxpayer may suffer to of their Affiliates in connection therewith or in enforcing their rights hereunder. AGREEMENT FOR PURCHASE OF LLC INTEREST Initials: _______ _______ _______
2.2 Except as provided herein, the fullest extent indemnities provided for in this Section 7.2.
shall apply notwithstanding any investigation made by Buyer in connection with the transactions contemplated by this Agreement or its receipt or review of or comments on, any Tax Return, (ii) shall be separate and independent of any other indemnity provision contained herein, and (iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrarycontrary notwithstanding, the indemnification obligations of the Seller Parties under this Article VI shall survive until three (3) months after the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end expiration of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on including extensions or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritywaivers thereof.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protectshall indemnify, save and hold Buyer harmless each Indemnified Taxpayer from, from and against any and all Damages directly losses incurred in connection with, arising out of, resulting from:
from or incident to (i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(iia) any Taxes of any other Person imposed of the Acquired Companies with respect to any Tax year or portion thereof ending on or before the Company Closing Date (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of for any written Tax sharing or Tax allocation agreement in effect on or prior to year beginning before and ending after the Closing Date, to the extent allocable (Bas determined in the following sentence) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring the portion of such period beginning before and ending on or prior to the Closing Date), or and (Cb) by reason the unpaid Taxes of being a member, partner or similar owner any Person (other than any of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to the Acquired Companies) under Treasury Regulation Table of Contents regulation Section 301.77011.1502-3 6 (or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(dlaw); or
(iv) any breach of , as a transferee or failure to perform any representationsuccessor, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult withcontract, or obtain otherwise. Notwithstanding any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything provision in this Agreement to the contrary, Seller shall not be responsible for and shall not indemnify, save and hold Buyer harmless from any Taxes reserved for on the indemnification obligations Interim Financial Statements or Taxes incurred by the Acquired Companies in the ordinary course of business after the date of such Interim Financial Statements. For purposes of the Seller Parties under this Article VI shall survive preceding sentence, in the case of any Taxes that are imposed on a periodic basis and are payable for a Tax period that includes (but does not end on) the Closing until sixty Date, the portion of such Tax that relates to the portion of such Tax period ending on the Closing Date shall (60x) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Tax for the entire Tax period multiplied by a fraction the numerator of which is the number of days following in the end Tax period ending on the Closing Date and the denominator of which is the applicable statutes number of limitations. With respect to any indemnification obligation for days in the entire Tax period, and (y) in the case of any Tax for based upon or related to income or receipts, be deemed equal to the amount which a would be payable if the relevant Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, period ended on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationClosing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ambassadors International Inc)
Indemnification for Taxes. Notwithstanding anything to the contrary in this Agreement (a) Seller Parties shall, in particular Section 9):
10.3.1 Sellers shall jointly and severally, severally indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agree to jointly and severally protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all reasonable expenses, including attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Tax Losses”), resulting from:
(ia) (A) any Taxes of the Company or Sellers allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect Straddle Period ending on or prior to the Closing Date, and (B) a claim by any Governmental Authority for any Taxes of the Company or any corporation that is or was a member of an Affiliated Group of which the Company was or is a member, or any liability of any of the foregoing for the Taxes of any Person, whether as a transferee or successor, by contract or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirementsotherwise;
(iiib) a claim by any Governmental Authority for any Taxes arising from or occasioned by the portion sale of the Shares pursuant to this Agreement;
(c) any misrepresentation or breach of any Transfer Taxes that are the responsibility of Sellers pursuant to representation, warranty or obligation set forth in this Section 7.2(d)10; or
(ivd) any breach or violation of or failure to perform any representation, warranty, covenant or agreement of Sellers in this Agreement relating to Taxes or Tax Returns.
Section 10.2 (i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification each of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely omitting any Materiality Qualifier).
10.3.2 Subject to the resolution of any Tax contest pursuant to Section 10.3.3, upon notice from Buyer to such Seller Party by providing written notice Sellers’ Representative that an Indemnified Taxpayer is entitled to Seller Representative on or before the ninetieth (90th) day after an indemnification payment for a Tax Loss pursuant to Section 10.3.1, Sellers thereupon shall jointly and severally pay to the Indemnified Taxpayer’s receipt Taxpayer an amount that, net of a written assertion of the claim by the Tax Authority.
(d) Sellers, any Taxes imposed on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation Indemnified Taxpayer with respect to all such Transfer Taxesthe payment, and, if required by applicable Legal Requirements, Buyer will, will indemnify and will cause its Affiliates to, join in hold the execution of any such Indemnified Taxpayer harmless from the Tax Returns and other documentationLoss.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallThe Shareholders hereby agree to indemnify the Company, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company Affiliates (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agree to protect, save and hold harmless each Indemnified Taxpayer from, his or her Proportionate Share of any and all Damages directly claims, damages, deficiencies, losses (including Taxes, interest and penalties) and all expenses, including attorneys' and accountants' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company allocable to any period ending on or prior to the Closing Date orDate, as provided in Section 7.3(b), allocable to and (B) any Taxes of the pre-Closing portion of any period that begins on or before and ends after the Closing DateShareholders;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result consummation of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in transactions contemplated by this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d8.02(c); or
(iv) , upon notice from Buyer to the Shareholders that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.02(a), the Shareholders shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Shareholders in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative The Indemnified Taxpayer shall have take such action in connection with contesting such claim as the right Shareholders shall reasonably request in writing from time to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as time; provided that (A) Buyer within 30 days (or such earlier date that any payment of Taxes is kept reasonably informed of due by the status and progress of Indemnified Taxpayer) after the notice described in (i) above has been delivered, the Shareholders request that such claim and related proceedingsbe contested, (B) Buyer the Shareholders shall have agreed to pay to the Indemnified Taxpayer on demand all costs and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense expenses that the Indemnified Taxpayer may incur in connection with contesting such claim claim, including, without limitation, reasonable attorneys' and related proceedingsaccountants' fees and disbursements, and (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, Sellers the Shareholder shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount of such Indemnified Taxpayer is requested to payclaim. If any of In the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry case of any judgment or enter into any settlement with respect tosuch claim referred to above, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically shall not make payment of such claim for at least 30 days (or such shorter period as may be required by applicable law) after the costs giving of defending against the claim notice required by (including reasonable attorneys’i) above, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer shall give to the fullest extent provided Shareholders any information reasonably requested relating to such claim and otherwise shall cooperate with the Shareholders in this Section 7.2good faith in order to contest effectively any such claim.
(iii) Seller Representative Subject to the provisions of paragraph (ii) above, the Indemnified Taxpayer shall prosecute such contest to a determination in a court of initial jurisdiction, and if the Shareholders shall reasonably request, the Indemnified Taxpayer shall prosecute such contest to a determination in an appellate court.
(iv) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Shareholders pursuant to paragraph (ii)(C) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the final judgment or decree of a court or a final or binding settlement with an administrative agency having jurisdiction thereof, the Indemnified Taxpayer shall promptly pay to the Shareholders any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority). Notwithstanding the foregoing, the Indemnified Taxpayer shall not be entitled required to settle make any payment hereunder before such time as the Shareholders shall have made all payments or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment indemnities then due with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerTaxpayer pursuant to this Article VIII.
(cd) Notwithstanding anything Anything to the contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Shareholders under this Article VI VIII shall survive the Closing until sixty (60) days following the end expiration of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallSubject to the terms of Section 11.01, jointly each of the Stockholders and severally, indemnify the Principals hereby severally indemnifies each Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies, losses (including Taxes, interest and penalties) and all reasonable expenses, including attorneys' and accountants' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any excise Taxes relating to transfers of intellectual property or any income Taxes of the Company allocable to any period ending on or prior to the Closing Date orDate, as provided in Section 7.3(b)including, allocable but not limited to any Taxes resulting from the pre-Closing portion merger of Richxxxxxx Xxxs L.L.C. into the Company, and (B) any income Taxes of the Stockholders or any corporation that is or was a member of an affiliated group of which the Company was a member for any period that begins ending on or before and ends after prior to the Closing Date;
(ii) any Taxes Any breach of any other Person imposed on warranty or obligation set forth in this Article X.
(b) Subject to the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result resolution of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers contest pursuant to Section 7.2(d10.02(c); or
(iv) , upon notice from any breach Buyer to the Stockholders that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 10.02(a), the Stockholders shall thereupon severally pay to the Indemnified Taxpayer an amount that, net of any Taxes imposed or failure deductions available on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer for a Loss, the Indemnified Taxpayer shall immediately, but in no event later than seven (7) days therefrom, promptly notify the Stockholders in writing of such fact.
(ii) The Stockholders shall select the tax counsel to handle the claim, provided that the counsel shall be reasonably acceptable to the Indemnified Taxpayer. The Stockholders shall determine in their sole discretion all actions to be taken to contest the claim, including (A) whether any action to contest such claim shall initially be by way of judicial or administrative proceedings, or both, (B) whether any such claim shall be contested by resisting payment thereof or by paying the same and seeking a refund thereof, and (C) if judicial action shall be undertaken, the court or other judicial body before which such action shall be commenced. Subject to the satisfaction of paragraph (iii), the Indemnified Taxpayer shall promptly notify Seller Representative take such action in connection with contesting such claim as the Stockholders shall reasonably request in writing of such fact; provided that any failure from time to give such notice will not waive any rights time.
(iii) The obligations of the Indemnified Taxpayer except pursuant to the extent the rights of the indemnifying party are actually materially prejudiced.
paragraph (ii) Seller Representative shall have be subject to the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel satisfaction or waiver by the Stockholders of Seller Representative’s choice so long as the following conditions: (A) Buyer within 30 days (or such earlier date that any payment of Taxes is kept reasonably informed of due by the status and progress of Indemnified Taxpayer) after the notice described in (i) above has been delivered, the Stockholders request that such claim and related proceedingsbe contested, (B) Buyer the Stockholders shall have agreed to pay to the Indemnified Taxpayer on demand all costs and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense expenses that the Indemnified Taxpayer may incur in connection with contesting such claim claim, including, without limitation, reasonable attorneys' and related proceedingsaccountants' fees and disbursements, and (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for xxx a refund, and if so requested by Bxxxx, Sellers the Stockholders shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount of such Indemnified Taxpayer is requested to payclaim. If any of In the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry case of any judgment or enter into any settlement with respect tosuch claim referred to above, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly shall not make payment of such claim for at least 30 days (or such shorter period as may be required by applicable law) after the giving of the notice required by (i) above, shall give to the Stockholders any information reasonably requested relating to such claim and periodically for otherwise shall cooperate with the costs Stockholders in good faith in order to contest effectively any such claim.
(iv) Subject to the provisions of defending against the claim paragraph (including reasonable attorneys’, accountants’ and experts’ fees and disbursementsii) and (ziii) Sellers will remain responsible for any Damages Buyer or any other above, the Indemnified Taxpayer may suffer shall prosecute such contest to a determination in a court of initial jurisdiction, and if the Stockholders shall request, the Indemnified Taxpayer shall prosecute such contest to a determination in an appellate court.
(v) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Stockholders pursuant to paragraph (iii)(C) above, the extent of the liability of the Indemnified Taxpayer with respect to the fullest extent indemnified matter shall be established by the final judgment or decree of a court or a final or binding settlement with an administrative agency having jurisdiction thereof, the Indemnified Taxpayer shall promptly pay to the Stockholders any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority). Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before such time as the Stockholders shall have made all payments or indemnities then due with respect to Indemnified Taxpayer pursuant to this Article X.
(vi) The determination of the amount of the indemnification payment shall be made in the first instance by the Indemnified Taxpayer which shall furnish the Members with a notice setting forth in reasonable detail the computations and methods used in computing such amount. At the request of the Stockholders, the accuracy of the Indemnified Taxpayer's calculation of the amount payable to or by the Stockholders under this Section shall be verified by an independent nationally recognized certified public accounting firm selected by the Stockholders and reasonably satisfactory to the Indemnified Taxpayer. All expenses of the verification provided in this Section 7.2.
(iii) Seller Representative shall not be entitled paid by the Stockholders unless the amount finally determined to settle or to contest any claim relating to Taxes without be payable deviates by more than 5% from the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in amount originally proposed by the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(cd) Notwithstanding anything Anything to the contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Stockholders under this Article VI X shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer as provided in Section 11.01 and shall be treated as having provided timely notice subject to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritylimitations set forth therein.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
, Seller Parent and the Seller Parent's Group (iior any successor thereto) shall be responsible for and shall indemnify and hold harmless Purchaser and its affiliates (including each of the Subject Companies) from any and all (i) Taxes of any other Person imposed on any member of the Company (or Buyer Seller Parent's Group for any taxable year including, but not limited to, Taxes arising solely as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6(a) or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer law for Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except Seller Parent's Group or for which any Subject Company may be liable because of membership in any other affiliated, consolidated, combined or unitary group at any time prior to the extent the rights of the indemnifying party are actually materially prejudiced.
Closing, (ii) Seller Representative shall have Taxes imposed on the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of Subject Companies or for which the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer Subject Companies may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible otherwise be liable for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative taxable year that ends on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) SellersClosing Date and, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all any taxable year beginning before and ending after the Closing Date, the portion of such Transfer Taxestaxable year ending on (and including) the Closing Date (such portion being referred to hereinafter as the "Interim Period") (the Interim Period and any taxable year that ends on or before the Closing Date being referred to collectively hereinafter as the "Pre-Closing Period"); (iii) Taxes imposed on or payable by any Subject Company as a result of the Reorganization under Section 6.7 or the Election(s) under Section 10.7; (iv) Taxes imposed on or payable by any Subject Company as a result of a breach by Seller Parent, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution Seller or any of their affiliates of any such Tax Returns covenant contained in this Article X (including with respect to the obligations of Seller Parent and Seller to make any Election(s)); (v) Taxes imposed on or payable by the Subject Companies for any Pre-Closing Period as a result of a breach of a representation or warranty contained in Section 4.12 (other documentationthan section 4.12(b)); and (vi) Taxes imposed on or payable by the Subject Companies as a result of a breach of the representation contained in Section 4.12(b).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Washington Mutual Finance Corp)
Indemnification for Taxes. (a) Seller Parties shallThe Stockholders' and Option Holders' respective indemnification obligations pursuant to this Agreement shall apply, jointly and severallyexcept to the extent reserves or accruals for Taxes are taken into account in the determination of the Final Adjusted Net Book Value of Target, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
Liabilities and Losses for Taxes imposed upon or assessed against Target or any of its Subsidiaries or the assets thereof (i) any Taxes of the Company allocable to any period for all Tax periods ending on or prior to before the Closing Date or, as provided in Section 7.3(b), allocable to and the pre-portion ending on the Closing portion Date of any Tax period that begins on or before and ends after includes (but does not end on) the Closing Date;
, as determined pursuant to SECTION 10.4(C) hereof (iithe "PRE-CLOSING TAX PERIOD") (including, except as otherwise provided herein, any Taxes of any other Person imposed on the Company (or Buyer Tax liability arising as a result of the Company being a disregarded entity post-Closing) (A) transactions contemplated by this Agreement, but excluding any liability for Taxes arising as a result of any written Tax sharing breach by Purchaser of the covenants set forth in SECTION 10.10 hereof), (ii) arising out of, based upon or Tax allocation agreement resulting from any breach or inaccuracy of any representations or warranties contained in effect SECTION 4.18(a), (b), (d), (f), (h), (j), (k) and (m) hereof; (iii) by reason of being a successor-in-interest or transferee of another entity; and (iv) with respect to any and all Taxes of any member of an Affiliated Group of which Target or any of its Subsidiaries is or was a member on or prior to the Closing Date, including by reason of the application of Treasury Regulation Section 1.1502-6(a) or any analogous or similar state, local or foreign law or regulation; PROVIDED, HOWEVER, that none of the Stockholders or Option Holders shall be required to indemnify, defend or hold harmless any Purchaser Indemnified Party from and against any Liabilities or Losses for Taxes imposed upon or assessed against Target or any of its Subsidiaries or the assets thereof arising by reason of any action in respect of a Tax liability for a Tax period ending on or before the Closing Date or a Pre-Closing Tax Period taken or not taken after the Closing Date by Purchaser or any of its Affiliates or any transferee of the Purchaser or any of its Affiliates, except for any action or inaction which is consistent with the Tax Return reporting positions of Purchaser or Target or required by applicable law, the Merger Agreement or in connection with any audit or Tax proceeding in respect of a Tax liability for a Tax period ending on or before the Closing Date or a Pre-Closing Tax Period (a "PURCHASER TAX ACT").
(b) Purchaser shall indemnify the Stockholders and the Option Holders from (i) all Liabilities and Losses for Taxes of Target's Subsidiaries for any Tax period ending after the Closing Date, except to the extent such Tax period began before the Closing Date, in which case Purchaser's indemnity obligation shall apply only to that portion of any such Taxes that are not attributable to the Pre-Closing Tax Period, and (ii) all Liabilities and Losses for Taxes attributable to (A) a breach by Purchaser of its obligations and covenants under SECTION 10.10 hereof or (B) as a transferee Purchaser Tax Act.
(c) In the case of any Taxes of Target or successorany of its Subsidiaries that are payable for a Tax period that includes (but does not end on) the Closing Date (a "STRADDLE PERIOD"), or otherwise under applicable Legal Requirements the portion of such Taxes for the Pre-Closing Tax Period shall equal:
(i) in the case of real, personal and intangible property Taxes ("PROPERTY TAXES") of Target and its Subsidiaries, the amount of such Taxes for the Straddle Period multiplied by a fraction the numerator of which Taxes described is the number of days in this clause (B) relate to an event or transaction occurring the Straddle Period on or prior to the Closing Date), or (C) by reason Date and the denominator of being a member, partner or similar owner which is the number of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result days in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such factentire Straddle Period; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.and
(ii) Seller Representative shall have in the right to defend against any claim under subsection (b)(i) at Sellers’ expense case of Taxes of Target and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of its Subsidiaries other than Property Taxes, the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) amount which would be payable if the applicable Indemnified Taxpayer is requested to pay the relevant Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, period ended on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityDate.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after 8.2.1 To the extent not accrued as a liability on the Company’s balance sheet at the time of Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”)Seller shall indemnify Buyer, againstCompany, and protect, save their respective Affiliates and hold each of them harmless each Indemnified Taxpayer from, any (on an after-Tax basis) from and all Damages directly resulting from:
against (i) any and all Taxes of the Company allocable to (or any predecessor company thereto or any subsidiary) in respect of any period ending on or before the Closing Date, or in the case of a period that includes but does not end at the Closing Date, the portion thereof prior to and including the Closing Date or(such period or portion, as provided in Section 7.3(b), allocable to the prea “Pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Period”); (ii) any and all Taxes for which the Company may be or become liable by reason of (1) being a member of an affiliated, combined, consolidated, or unitary group at any time prior to the Closing, including under Treasury Regulation Section 1.1502-6 or any analogous or similar provision under any state, local, or foreign Tax Law or (2) being a successor-in-interest or transferee of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), Closing; or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion effect of any Transfer breach of a representation in Section 5.13 or covenant in Section 11.2 or other covenant with respect to Taxes, in each case, all reasonable costs (including reasonable attorneys’ fees and related disbursements and expenses) incurred by Company, Buyer, or any of their Affiliates in connection therewith or in enforcing their rights hereunder.
8.2.2 Except as provided herein, the indemnities provided for in this Section shall apply notwithstanding any investigation made by Buyer in connection with the transactions contemplated by this Agreement or its receipt or review of or comments on, any Tax Return, (ii) shall be separate and independent of any other indemnity provision contained herein, and (iii) anything in this Agreement to the contrary notwithstanding, shall survive until three (3) months after the expiration of the applicable statute of limitations, including extensions or waivers thereof.
8.2.3 Seller shall promptly forward to Buyer a copy of all written communications from a Tax authority received by Seller that relates to Company, its income, assets, payroll, or operations, including any notice of a Tax Proceeding with respect to the Taxes that are of the responsibility Company. Buyer shall promptly forward to Seller a copy of Sellers all written communications from a Tax authority received by it for which the Seller may be liable under this Section, including any notice of a Tax Proceeding. Page 11 of 22 Initials: EZ SC DC ACTIVE 64517303v2
8.2.4 Buyer agrees not to settle or make any payment of an amount claimed to be due with respect to a proposed adjustment or undertake the defense or control of any Tax Proceeding for which Seller may be liable under this Section for at least fifteen (15) days after giving notice to Seller pursuant to Section 7.2(d9.2(c); or
. If, within such fifteen (iv) any breach of or failure to perform any representation15)-day period, warranty, covenant or agreement in this Agreement relating to Taxes Xxxxx receives a written request from Seller that the proposed adjustments or Tax Returns.
(i) If Proceeding will be contested or defended, which includes a written statement of a reasonable basis in fact and in law for such contest, which includes an acknowledgement that the claim or Tax Proceeding is made by any Tax Authority thatone to which the indemnity herein applies, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right thereafter to defend against any claim under subsection (b)(i) at Sellers’ expense undertake, conduct, and with control, through counsel of Seller Representative’s choice so long its own choosing and at its expense, the settlement and defense of such matter, and agrees to keep Xxxxx informed as (A) Buyer is kept reasonably informed to the progress of the status and progress of such claim and related proceedingsmatter, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedingsprovided, (C) however, that Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or not enter into any settlement with respect to, the claim in or compromise of any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes such matter without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, ifor conditioned. Buyer shall reasonably cooperate with Seller in connection with any such contest or Tax Proceeding. Notwithstanding the foregoing, in Buyer shall have the good faith judgment right thereafter to undertake, conduct, and control, through counsel of Buyerits own choosing and at its expense, the settlement ofand defense of any matter that relates to a Straddle Period, and agrees to keep Seller informed as to the progress of the matter, provided, however, that Buyer shall not enter into any settlement or compromise of any such matter which settlement or compromise would result in an indemnification obligation of Seller under this Agreement without prior written consent of Seller, which consent shall not be unreasonably withheld, delayed, or an adverse judgment conditioned. Seller shall reasonably cooperate with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred Buyer in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such contest or Tax Returns and other documentationProceeding.
Appears in 1 contract
Samples: Agreement for Purchase of LLC Interest (JUVA LIFE INC./Canada)
Indemnification for Taxes. (a) Seller Parties shallshall be responsible for, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:all
(i) any Income Taxes of the Company allocable imposed on Southeast or Southeast's interest in Partnership, and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys' fees, and expenses arising therefrom, relating to any period (A) taxable periods or portions thereof ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements Income Taxes resulting from the application of Treas. Reg. (which Taxes described in this clause (BS) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6 or any similar provision of comparable state, local or foreign Legal Requirements;
tax law attributable to Tesoro Parent, or any corporation or entity which is or has been affiliated with or been part of a combined, unitary or affiliated group with Tesoro Parent, and (iiiC) the portion of the Income Taxes for any Transfer Straddle Period (as defined in subsection 16.1(e)) allocable to Sellers with respect to either Southeast or Southeast's interest in the Partnership under subsection 16.2(e) and (ii) all Other Taxes that are imposed on Southeast or Southeast's interest in the responsibility of Sellers pursuant Partnership relating to the taxable periods or portions thereof ending on or before the Effective Time (allocated as described in Section 7.2(d13.3); or
(iv) provided, Sellers shall not be responsible for, and shall not be required to indemnify Buyer against, any breach of or failure Taxes to perform any representation, warranty, covenant or agreement the extent that such Taxes do not exceed the accrued liability for Taxes on the Balance Sheets which are taken into account in this Agreement relating to Taxes or Tax Returnsdetermining the Working Capital.
(b) Buyer shall be responsible for and shall indemnify Sellers against all (i) If a written claim is made by any Tax Authority that, if successful, would result Income Taxes imposed upon Southeast or Southeast's interest in the indemnification Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive, or other), reasonable attorneys' fees and expenses arising therefrom, relating to (A) taxable periods beginning after the Closing Date or (B) the portion of an Indemnified Taxpayerthe Income Taxes for any Straddle Period which are allocable to Buyer under subsection 16.2(e), and (ii) except as provided in Section 13.3 and in this Article XVI, all Other Taxes imposed upon Southeast or Southeast's interest in the Indemnified Taxpayer Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys fees and expenses arising therefrom arising in or relating to taxable periods or portions thereof beginning after the Effective Time (allocated as described in Section 13.3).
(c) Each Party shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights the other Party of the Indemnified Taxpayer except commencement of any demand, claim, audit, examination, Action or other proposed change or adjustment by any Taxing Authority concerning any Tax which could give rise to a claim for indemnity pursuant to subsection 16.1(a) or subsection 16.1(b), as the extent case may be (each a "Tax Claim"). Such notice shall contain factual information describing the rights asserted Tax Claim in reasonable detail and shall include copies of the indemnifying party are actually materially prejudicedany notice or other document received from any Taxing Authority in respect of any such asserted Tax Claim.
(iid) Seller Representative Seller, at its own expense, shall have the sole right to represent Southeast and the Partnership's interests in any Tax Claim for Taxes for which it is indemnifying Buyer against and to employ counsel of its choice. Buyer shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Action at its own expense. Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and not consent to the entry of any judgment or enter into any settlement with respect to, that reasonably would be expected to have an adverse effect on the claim Income Taxes of Southeast or Southeast's interest in the Partnership in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and period after the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes Closing Date without the consent of Buyer's consent, which consent shall not be unreasonably withheld. Buyer's consent shall in no way reduce any indemnification due to Buyer under subsection 16.1(a). If Seller elects to control the defense, conditioned compromise or delayedsettlement of any Tax Claim, if, Seller shall keep Buyer informed of the progress and disposition of such Tax Claim. Buyer shall handle any other Tax Claims of Southeast or Southeast's interest in the good faith judgment of BuyerPartnership, the and Buyer shall be entitled to defend, compromise or settle such Tax Claims in its sole discretion without in any way reducing its rights to indemnification under subsection 16.1(a), unless any such settlement ofwould give rise to a tax claim against Seller, or an adverse judgment with respect toand in such event such settlement shall be subject to Seller's consent, the claim would reasonably which shall not be expected to adversely affect any Indemnified Taxpayerunreasonably withheld.
(ce) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for taxable period of Southeast or the Partnership beginning before and ending after the Closing Date (a "Straddle Period"), Buyer shall control, and Seller, at its own expense, shall have the right to participate in, the defense and settlement of any Tax for which a Tax Authority asserts a claim within ninety (90) days before Claim and each Party shall cooperate with the end other Party and there shall be no settlement or closing or other agreement with respect thereto without the consent of the applicable statute other Party, which consent shall not be unreasonably withheld; provided, that if either Party shall refuse (the "Refusing Party") to consent to any settlement, closing or other agreement agreed to by the relevant Taxing Authority with respect to any such Tax Claim that the other party (the "Accepting Party") proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party's Liability with respect to the subject matter of limitations, an Indemnified Taxpayer the Proposed Settlement shall be treated as having provided timely notice limited to the amount that such Seller Party by providing written notice to Seller Representative on or before Liability would have been if the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one handProposed Settlement had been accepted, and Buyer, on (ii) the other hand, Refusing Party shall divide evenly the financial responsibility be responsible for all transfer, documentary, sales, use, stamp, registration Liabilities and other such Taxes and fees (including any penalties and interest) expenses incurred or imposed thereafter in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution contest of any such Tax Returns and other documentationClaim to the extent that the final settlement is more than the Proposed Settlement.
Appears in 1 contract
Samples: Purchase Agreement (Eex Corp)
Indemnification for Taxes. (a) Seller Parties shallshall be responsible for, jointly and severally, shall indemnify Buyer and its Affiliatesagainst, including, after the Closing, all Taxes imposed on the Company and all liabilities, losses, costs, fines, penalties, damages (each herein sometimes referred to as an “Indemnified Taxpayer”actual, punitive or other), againstreasonable attorneys' fees, and protectexpenses arising therefrom, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
relating to (i) taxable periods or portions thereof ending on or before the Closing Date, (ii) Taxes resulting from the application of Treas. Reg. ss. 1.1502-6 or any Taxes comparable state, local or foreign tax law attributable to Shell or any corporation or entity which is or has been affiliated with or been part of a combined, unitary or affiliated group with Shell, and (iii) the portion of the Company Taxes for any Bridge Period (as defined in subsection 14.07(e) allocable to any period ending on or before the Closing Date under subsection 12.07(d); provided, that Seller shall not be responsible for, and shall not be required to indemnify Buyer against, any Taxes to the extent that such Taxes do not exceed the accrued liability for Taxes taken into account in determining Net Working Capital under Section 3.03, if any.
(b) Buyer shall be responsible for and shall indemnify Seller against all Taxes imposed on the Company and all liabilities, losses, costs, fines, penalties, damages (actual, punitive, or other), reasonable attorneys' fees and expenses arising therefrom, relating to (i) taxable periods beginning after the Closing Date or (ii) the portion of the Taxes for any Bridge Period which are allocable to any period beginning after the Closing Date under Section 12.07(d).
(c) Each Party shall promptly notify the other Party of the commencement of any demand, claim, audit, examination, action or other proposed change or adjustment by any taxing authority concerning any Tax which could give rise to a claim for indemnity pursuant to subsection (a) or subsection (b), as the case may be (each a "Tax Claim"). Such notice shall contain factual information describing the asserted Tax Claim in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax Claim.
(d) Seller, at its own expense, shall have the sole right to represent the Company's interests in any Tax Claim relating to any taxable period of the Company ending on or prior to the Closing Date or, as provided and to employ counsel of its choice. Seller shall not consent to any settlement that reasonably would be expected to have an adverse effect on the Taxes of the Company in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes Date without the consent of Buyer's consent, which consent shall not be unreasonably withheld. Buyer's consent shall in no way reduce any indemnification due to Buyer under subsection (a). If Seller elects to control the defense, conditioned compromise or delayedsettlement of any Tax Claim, ifSeller shall keep Buyer informed of the progress and disposition of such Tax Claim. Buyer shall handle any Tax Claims of the Company for periods ending on or prior to the Closing Date which Seller elects in writing not to control, and Buyer shall be entitled to defend, compromise or settle such Tax Claims in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected its sole discretion without in any way reducing its rights to adversely affect any Indemnified Taxpayerindemnification under subsection (a).
(ce) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for taxable period of the Company beginning before and ending after the Closing Date (a "Bridge Period"), Buyer shall control, and Seller, at its own expense, shall have the right to participate in, the defense and settlement of any Tax for which a Tax Authority asserts a claim within ninety (90) days before Claim and each Party shall cooperate with the end other Party and there shall be no settlement or closing or other agreement with respect thereto without the consent of the applicable statute other Party, which consent shall not be unreasonably withheld; provided, that if either Party shall refuse (the "Refusing Party") to consent to any settlement, closing or other agreement agreed to by the relevant taxing authority with respect to any such Tax Claim that the other Party (the "Accepting Party") proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party shall have all liabilities with respect to the subject matter of limitationsthe Proposed Settlement up to the amount that such liability would have been if the Proposed Settlement had been accepted, an Indemnified Taxpayer and (ii) the Refusing Party shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility responsible for all transfer, documentary, sales, use, stamp, registration liabilities and other such Taxes and fees (including any penalties and interest) expenses incurred or imposed thereafter in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution contest of any such Tax Returns and other documentationClaim to the extent that the final settlement is more than the Accepting Party's liability.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tesoro Petroleum Corp /New/)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from any and all Damages directly resulting fromIndemnifiable Losses to the extent arising out of the following:
(i) any Taxes of the Company allocable to any period ending on or prior with respect to the Companies for all Pre-Closing Date orTax Periods, as provided in Section 7.3(b), allocable except to the pre-Closing portion extent of any period that begins on or before and ends after accrued liability for Taxes taken into account in the Closing Datecalculation of the Final Adjustment Amount;
(ii) any liability for Taxes of any Person other Person imposed on than the Company Companies pursuant to any provision of joint and several liability under Treasury Regulation Section 1.1502-6 (or Buyer as a result any corresponding provision of state, local, or foreign law) with respect to any affiliated, consolidated, combined, or unitary group of which the Company being a disregarded entity post-Companies were members prior to the Closing, under any contract (including any agreement relating to the sharing, allocation or payment of, or indemnity for, Taxes) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or entered into prior to the Closing Date, (B) as or by operation of law with reference to a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an pre-Closing event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirementsaction;
(iii) any income Taxes imposed on Seller or the portion Seller Group relating to the sale of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); orCompanies;
(iv) any amount payable after the Closing Date, as a Tax or otherwise, as a result of either Company's being party to any Tax Sharing Agreement;
(v) Seller's share of any Conveyance Taxes pursuant to Section 8.4;
(vi) any breach of a representation or failure warranty contained in Section 3.12; and
(vii) any breach or nonfulfillment of any agreement or covenant of Seller under Section 5.1(a)(xx) or this Article VIII.
(b) Buyer shall indemnify and hold harmless the Seller Indemnified Persons from any and all Indemnifiable Losses to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.the extent arising out of the following:
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification Taxes of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except or with respect to the extent the rights of the indemnifying party are actually materially prejudiced.Companies for all Post-Closing Tax Periods;
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry Buyer's share of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer Conveyance Taxes pursuant to the fullest extent provided in this Section 7.2.8.4; and
(iii) Seller Representative shall not be entitled to settle any breach or to contest nonfulfillment of any claim relating to Taxes without the consent agreement or covenant of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerBuyer under this Article VIII.
(c) Notwithstanding anything For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in this Agreement the following manner:
(i) in the case of Taxes based on or measured by income, gain, or receipts, or related to the contraryactual or deemed sale or transfer of property, or which are withholding Taxes, such Taxes shall be allocated based on an interim closing of the books as of the Closing Date; and
(ii) in the case of Taxes calculated on a periodic basis, the indemnification obligations portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Seller Parties under this Article VI shall survive Straddle Period ending on the Closing until sixty (60) Date and the denominator of which is the number of days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationentire Straddle Period.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Western Life Group, Inc.)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after In accordance with the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), againstprovisions of Article 3, and protectsubject to Section 15.5, save Seller agrees to indemnify and hold harmless each Indemnified Taxpayer fromBuyer, Parent, their Affiliates, successors and permitted assigns from and against any and all Damages directly resulting from:
Indemnifiable Losses incurred or suffered by Buyer arising from (i) any Taxes of the Company allocable to any period ending on Seller or prior its Affiliates or Taxes attributable to the Closing Date or, as provided in Section 7.3(b), allocable to operations of the pre-Closing portion Store Properties or ownership of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company Acquired Assets for all Tax periods (or Buyer as a result of the Company being a disregarded entity post-Closingportions thereof) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (Bii) as a transferee any material breach of the representations contained in Section 5.10 or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion failure of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure Seller to perform any representation, warranty, covenant of the agreements or agreement undertakings made by Seller in this Agreement relating to Taxes or Tax ReturnsArticle 15.
(b) In accordance with the provisions of Article 3, and subject to Section 15.5, each of Buyer and Parent agrees to indemnify and hold harmless Seller, its Affiliates, successors and permitted assigns from and against any and all Indemnifiable Losses incurred or suffered by Seller arising from (i) If a written claim is any Taxes of Buyer or its Affiliates or Taxes attributable to the operations of the Store Properties or ownership of the Acquired Assets for all Tax periods (or portions thereof) ending on or after the Closing Date, or (ii) the failure of Buyer to perform any of the agreements or undertakings made by Buyer in this Article 15.
(c) Any Party seeking indemnification under this Article 15 (the "Tax Indemnitee") shall give the other Party (the "Tax Indemnitor") written notice of any audit, proposed adjustment or assessment, or proceeding by a Tax Authority that, if successful, would result in authority involving Taxes for which the Tax Indemnitee will seek indemnification no later than 20 Business Days after receipt of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing notice of such factproceeding by the Tax Indemnitee; provided provided, however, that any the failure to give such notice will not waive any rights of the Indemnified Taxpayer except Tax Indemnitee to so notify the Tax Indemnitor shall not preclude any indemnity hereunder unless and to the extent that such failure has materially and adversely affected the rights of Tax Indemnitor's ability to effectively conduct and contest the indemnifying party are actually materially prejudiced.
(ii) Seller Representative asserted Tax claim. At its cost, the Tax Indemnitor shall have the right to defend against any claim control and settle such proceeding; provided, however, that to the extent the Tax Indemnitor is not liable under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed this Article 15 for the entire amount of the status Tax relating to such proceeding, at the Tax Indemnitee's option, (i) the Tax Indemnitor shall have the right to control the proceeding at its cost and progress to settle such proceeding with the written approval of the Tax Indemnitee (which approval shall not be unreasonably withheld), (ii) the Tax Indemnitee shall have the right to control the proceeding at its cost and to settle such proceeding with the written approval of the Tax Indemnitor (which approval shall not be unreasonably withheld), or (iii) the Tax Indemnitor and Tax Indemnitee shall jointly control and share the cost and mutually agree on a settlement of such proceeding.
(d) No Party shall be entitled to indemnification relating to Taxes unless the claim for indemnification is asserted in writing within one year following the final determination of (including the expiration of the time to appeal) any audit examination, investigation or other proceeding relating to the Taxes for which indemnification is sought.
(e) Notwithstanding anything to the contrary in this Agreement, the obligations imposed by this Article 15 shall survive until the expiration of 60 days following the expiration of the applicable statute of limitations for assessment and related proceedingscollection of each Tax; provided, (B) Buyer and Bxxxx’s counsel are allowed however, that in the event that a notice of claim for indemnity pursuant to participate at Bxxxx’s expense in this Article 15 is made during such claim and related proceedingsperiod, (C) Seller Representative’s counsel indemnity with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of shall survive until such time as the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2finally resolved.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) In accordance with the provisions of Article III, and subject to Section 14.4 and Section 14.5, Seller Parties shallagrees to indemnify and hold harmless Buyer, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, successors and protect, save permitted assigns from and hold harmless each Indemnified Taxpayer from, against any and all Damages directly resulting from:
Indemnifiable Losses incurred or suffered by Buyer arising from (i) any Taxes (other than Taxes that are Assumed Liabilities) of Seller or its Affiliates or Taxes attributable to the operation of the Company allocable to any period ending on System or prior to ownership of the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company Acquired Assets for all Tax periods (or Buyer as a result of the Company being a disregarded entity post-Closingportions thereof) (A) as a result of any written Tax sharing or Tax allocation agreement in effect ending on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(ivii) any breach of the representations contained in Section 5.10(a), (iii) any breach of the covenant contained in Section 7.10 or (iv) the failure of Seller to perform any representation, warranty, covenant of the agreements or agreement undertakings made by Seller in this Agreement relating to Taxes or Tax ReturnsArticle XIV.
(b) In accordance with the provisions of Article III, and subject to Section 14.4 and Section 14.5, Buyer agrees to indemnify and hold harmless Seller, its Affiliates, successors and permitted assigns from and against any and all Indemnifiable Losses incurred or suffered by Seller arising from (i) If a written claim is any Taxes that are Assumed Liabilities of Buyer or its Affiliates or Taxes attributable to the operation of the System or ownership of the Acquired Assets for all Tax periods (or portions thereof) ending after the Closing Date, or (ii) the failure of Buyer to perform any of the agreements or undertakings made by Buyer in this Article XIV.
(c) Any Party seeking indemnification under this Article XIV (the “Tax Indemnitee”) shall give the other Party (the “Tax Indemnitor”) written notice of any audit, proposed adjustment or assessment, or proceeding by a Tax Authority that, if successful, would result in authority involving Taxes for which the Tax Indemnitee intends to seek indemnification no later than 20 business days after receipt of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing notice of such factproceeding by the Tax Indemnitee; provided provided, however, that any the failure to give such notice will not waive any rights of the Indemnified Taxpayer except Tax Indemnitee to so notify the Tax Indemnitor shall not preclude any indemnity hereunder unless and to the extent that such failure has materially and adversely affected the Tax Indemnitor’s contest rights of with respect to the indemnifying party are actually materially prejudiced.
(ii) Seller Representative proceeding. At its cost, the Tax Indemnitor shall have the right to defend against any claim control and settle such proceeding; provided, however, that to the extent the Tax Indemnitor is not liable under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed this Article XIV for the entire amount of the status Tax relating to such proceeding, at the Tax Indemnitee’s option, (i) the Tax Indemnitor shall have the right to control the proceeding at its cost and progress to settle such proceeding with the written approval of the Tax Indemnitee (which approval shall not be unreasonably withheld), (ii) the Tax Indemnitee shall have the right to control the proceeding at its cost and to settle such proceeding with the written approval of the Tax Indemnitor (which approval shall not be unreasonably withheld), or (iii) the Tax Indemnitor and Tax Indemnitee shall jointly control and share the cost and mutually agree on a settlement of such proceeding.
(d) Neither Party shall be entitled to indemnification relating to Taxes unless the claim for indemnification is asserted in writing within one year following the final determination of (including the expiration of the time to appeal) any audit examination, investigation or other proceeding relating to the Taxes for which indemnification is sought.
(e) Notwithstanding anything to the contrary in this Agreement, the obligations imposed by this Article XIV shall survive until the expiration of 60 days following the expiration of the applicable statute of limitations for assessment and related proceedingscollection of each Tax; provided, (B) Buyer and Bxxxx’s counsel are allowed however, that in the event that a notice of claim for indemnity pursuant to participate at Bxxxx’s expense in this Article XIV is made during such claim and related proceedingsperiod, (C) Seller Representative’s counsel indemnity with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of shall survive until such time as the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2finally resolved.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnification for Taxes. (a) Seller Parties shallEach of the Shareholders covenants and agrees, jointly and severally, to be responsible for, defend, indemnify Buyer and its Affiliates, including, after hold harmless the ClosingPurchaser, the Company (Company, each herein sometimes referred to as an “Indemnified Taxpayer”), of its Subsidiaries and their respective Affiliates from and against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
to pay (i) any all Taxes of imposed on or with respect to the Company allocable or any of its Subsidiaries attributable to, arising from or relating to any taxable period (or portion thereof) ending on or prior before the Year End Date to the Closing Date orextent that the total amount of such Taxes exceeds the total reserve with respect to Taxes reflected (excluding for this purpose any deferred tax liability reserves and any reserves for non-current taxes) on the Financial Statements as of June 30, as provided in Section 7.3(b2000 (including without limitation, any such Taxes that are attributable to any transactions contemplated by this Agreement), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any all Taxes of any (other Person imposed on than transfer taxes described in Section 5.12) asserted against the Company (or Buyer any of its Subsidiaries as a result of the Company being a disregarded entity post-Closingor any of its Subsidiaries, as the case may be, having acquired assets (including by merger) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or from another Person prior to the Closing Date, (B) whether as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Dateotherwise), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
and (iii) any liability for Taxes arising out of or by virtue of any inaccuracy in or breach of any representation or warranty made by the Company in Section 3.7, in each of the above cases together with any reasonable out-of-pocket fees and expenses (including reasonable attorneys’ and accountants’ fees) as incurred by the Purchaser, the Company or their Affiliates in connection with the assessment or collection thereof (provided, in the case of Section 3.7(m), that the Purchaser does not file any Tax Return which contains any position inconsistent with the representations and warranties set forth therein). For purposes of clause (i) of Section 9.8, any liability attributable to a taxable period which begins before and ends after the Year End Date shall be apportioned between the portion of any Transfer Taxes that are such period ending on the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in Year End Date and the indemnification of an Indemnified Taxpayer, portion beginning on the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of day after the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then Year End Date (x) Buyer in the case of real and the applicable Indemnified Taxpayer may defend againstpersonal property Taxes and any capital Taxes, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith)by apportioning such Taxes on a per diem basis, (y) Sellers will reimburse Buyer in the case of income Taxes, on the basis of the taxable income or loss of the Company or any of its Subsidiaries, as determined from the books and records of the Indemnified Taxpayer promptly and periodically Company or any of its Subsidiaries for the costs of defending against the claim (including reasonable attorneys’such partial period, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer in the case of Taxes other than Taxes described in clauses (x) and (y), on the basis of the actual activities of the Company or any of its Subsidiaries, as determined from the books and records of the Company or any of its Subsidiaries for such partial period. Neither the Company nor any of its Subsidiaries shall be deemed, for the purpose of the Shareholders’ obligation under this Section 9.8, to have the benefit of any net operating loss, net capital loss or other Indemnified Taxpayer may suffer Tax credit or benefit that is attributable to, arises from or relates to any taxable period (or portion thereof) commencing after the fullest extent provided Year End Date. If a Purchaser Indemnitee deducts for Tax purposes a Tax liability described in this Section 7.2.
9.8 with respect to which the Shareholders have paid indemnification directly or indirectly to such Purchaser Indemnitee, the Surviving Corporation shall return or cause to be returned to the Shareholders’ Representative, promptly after such deduction is utilized (iii) Seller which for this purpose will include a reduction in the estimated tax payments by the Surviving Corporation), a portion of such indemnification equal to the amount by which such Purchaser Indemnitee’s Tax liability has been reduced by such deduction (determined after any increase in Taxes arising out of the receipt of the corresponding indemnification payment made by the Shareholders). For purposes of the immediately preceding sentence, any deduction of any Tax liability described in this Section 9.8 shall be deemed to be utilized only after any deduction or other Tax benefit otherwise available to the Purchaser Indemnitee has been actually utilized. If any amount is returned under this Section 9.8 to the Shareholders’ Representative and the deduction which gave rise to such returned amount is later disallowed or is otherwise determined to be superfluous after taking into account the ordering rule in the preceding sentence, the Shareholders’ Representative shall make an appropriate recovery payment to the Surviving Corporation or the Purchaser Indemnitee, as applicable. In the event that the Purchaser Indemnitee claims that a deduction has not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyerbeen utilized, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement Surviving Corporation shall make available to the contraryShareholders’ Representative and his representatives on a reasonable basis all books, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitationsrecords, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on returns, documents, files, other information necessary or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred useful in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationdetermination.
Appears in 1 contract
Samples: Stock Purchase Agreement and Plan of Merger (Equinox Group Inc)
Indemnification for Taxes. Subject to the provisions of this Section 10.4, effective at and as of the Closing Date:
(a) Seller Parties shallshall indemnify, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save defend and hold harmless each the Purchaser Indemnified Taxpayer fromParties from and against, without duplication, any and all Damages directly resulting from:
Losses incurred or suffered by any of the Purchaser Indemnified Parties to the extent arising out of or relating to: (i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date orExcluded Tax Liability, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity postfor Pre-Closing) Closing Tax Periods (A) as a result of imposed on any written Tax sharing Acquired Group Company or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (for which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership any Acquired Group Company is liable pursuant to Treasury Regulation Regulations Section 301.77011.1502-3 6 or any similar provision of state, local or foreign Legal Requirements;
Law, (iii) the portion any Taxes arising as a result of a breach by Seller of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
covenant in Article VII, (iv) any breach of or failure to perform Indirect Capital Gains Taxes and (v) any representation, warranty, covenant or agreement Taxes resulting from the Pre-Closing Restructuring Transactions (any such Taxes described in this Agreement relating to Taxes or Tax Returns.
clauses (i) If a written claim through (iv), “Seller Indemnified Taxes”); provided, that for the avoidance of doubt, Seller Indemnified Taxes shall not include any Transfer Taxes for which Purchaser is made liable under Section 7.10, any Taxes that Purchaser is obligated to bear pursuant to Section 5.9 or any Taxes paid by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If or any of the conditions in clauses (Aits Affiliates) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent pursuant to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iiib) Purchaser shall indemnify, defend and hold harmless the Seller Representative shall not be entitled to settle Indemnified Parties from and against, without duplication, any and all Losses incurred or to contest suffered by any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Indemnified Parties to the extent arising out of or relating to: (i) any liability assumed under this Article VI shall survive the Closing until sixty Section 2.4(b), (60ii) days following the end any Taxes of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on Acquired Group Companies or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required the Business or any Transferred Asset for Post-Closing Tax Periods and (iii) any Taxes arising as a result of a breach by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution Purchaser of any such Tax Returns and other documentationcovenant in Article VII.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallThe. Company and the Members, jointly and severally, indemnify hereby agree so indemnify, jointly and severally, Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Losses”) resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company or the Business allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date, and (B) any Taxes of the Company or any corporation that is or was a member of an Affiliated Group of which the Company was or is a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company’s capital stock pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Section 3.13.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d104(c); or, upon notice from Buyer to Seller that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 10.4(a), Seller shall thereupon pay to the Indemnified Taxpayer an amount that, net of any Taxes imposed on the Indemnified Taxpayer with respect to such payment, will indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(ivc) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.As follows:
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified indemnified Taxpayer, the Indemnified indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend the indemnified Taxpayer against any such claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s its choice satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed of Seller notifies the status and progress Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given notice of such claim that Seller will indemnify the Indemnified Taxpayer from and related proceedingsagainst the entirety of any Losses the indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (B) Buyer and Bxxxx’s counsel are allowed Seller provides the indemnified Taxpayer with evidence acceptable to participate at Bxxxx’s expense in such the Indemnified Taxpayer that Seller will have the financial resources to defend against the claim and related proceedingsfulfill his indemnification obligations hereunder, (C) if requested by the Indemnified Taxpayer, Seller Representative’s provides to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel with respect satisfactory to such claim is approved by Buyer the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlythat contest, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, Sellers . Seller shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (E) Seller conducts the defense of the claim actively and diligently.
(iii) Subject to the provisions of paragraph (ii) above, Seller shall be entitled to prosecute such contest to a determination in a court of initial jurisdiction, and if Seller shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, Seller shall provide to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(iv) Seller shall not be entitled to settle or to contest any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the good faith judgment of the Indemnified Taxpayer, to cause the liability for any Tax of the indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) If. If after actual receipt by the Indemnified Taxpayer of an amount advanced by Seller pursuant to paragraph (ii)(D) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to Seller any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless-from all Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the indemnified Taxpayers with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before such time as Seller shall have made all payments or indemnities then due with respect to indemnified Taxpayer pursuant to this Section 10.4.
(vi) if any of the conditions in clauses Section 10.4(c)(ii) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or . Seller Representative in connection therewith), (yB) Sellers Seller will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’, accountants’ and expertsexports’ fees and disbursements) and (zC) Sellers Seller will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.210.4.
(iiid) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything Contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(de) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by Seller when due, and Seller Representative will will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxestransfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal Requirementslaw, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Telava Networks Inc)
Indemnification for Taxes. (a) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company Seller shall indemnify the Entities (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and protect, save save, and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date ordamages, as provided in Section 7.3(b)Taxes, allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Datedeficiencies, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlylosses, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refundreasonable expenses, and if so requested by Bxxxxincluding, Sellers shall have advanced to such Indemnified Taxpayerwithout limitation, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursementsdisbursements (all herein referred to as “Losses”) and resulting from: (zi) Sellers will remain responsible except to the extent reflected in the final calculation of Closing Date Working Capital or the final computation of Funded Indebtedness, (A) any Taxes of or with respect to any Entity allocable to any Tax period ending on or prior to the Closing Date (a “Pre-Closing Tax Period”) or, as provided in Section 8.3(d) hereof, allocable to the pre-Closing portion of any Tax period that includes but does not end on the Closing Date (a “Straddle Period”), (B) any liability of or imposed on any Entity for Taxes of any Damages Buyer other Person as a transferee or successor, by contract, assumption or otherwise, in each case, resulting from actions taken or agreements entered into prior to the Closing, except for customary commercial agreements entered into in the ordinary course of business, the principal purpose of which is not with respect to Taxes, (C) any liability of or imposed on any Entity for Taxes of any other Person by operation of law (including Treasury Regulations Section 1.1502-6 or any other Indemnified Taxpayer may suffer similar or comparable provision of state, local or foreign law) as a result of any action taken on or prior to the fullest extent provided in this Section 7.2.
Closing or (iiiD) Seller Representative shall not be entitled to settle any liability arising from the Seller’s or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment its Affiliates’ breach of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything covenant in this Agreement with respect to the contraryTaxes; or (ii) any breach of any representation, the indemnification obligations of the Seller Parties under warranty, or obligation set forth in this Article VI VIII, disregarding any materiality qualifier provided therein; provided, however, that any indemnification for any breach of any representation, warranty, or obligation set forth in this Article VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With be limited to Losses with respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative period or portion thereof ending on or before prior to the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityClosing Date.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Roadrunner Transportation Systems, Inc.)
Indemnification for Taxes. (a) Seller Parties shallExcept with respect to indemnification for the Sales Tax Indemnity which are exclusively covered under Section 8.04, jointly the Sellers shall indemnify, defend and severally, indemnify Buyer hold the Purchaser and its AffiliatesAffiliates (including the Company) and their respective stockholders, includingRepresentatives, after the Closingpartners, the Company (each herein sometimes referred to as members, managers, officers and directors harmless on an “Indemnified Taxpayer”), after‑tax basis from and against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
: (i) all Taxes, losses, claims and expenses resulting from, arising out of, or incurred with respect to, any claims that may be asserted by any party based on, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 3.15 to be true and correct in all respects on and as of the Closing Date (without giving effect to any “material”, “materially”, “materiality”, “Material Adverse Effect”, “material adverse effect”, “material adverse change” or similar qualification contained therein); (ii) all Taxes imposed on, asserted against or attributable to the properties, income or operations of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes for which the Company are otherwise liable, for all Pre‑Closing Periods (including, for the avoidance of doubt, any other Person sales (or similar) Taxes); (iii) all Taxes imposed on the Company (or Buyer as a result of the provisions of Treasury Regulations Section 1.1502‑6 or the analogous provisions of any state, local or foreign Law; and (iv) all Taxes imposed on the Company, or for which the Company being a disregarded entity post-Closing) (A) may be liable, as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Datetransaction contemplated by this Agreement, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim such amounts mentioned herein under subsection (b)(i) at this Section 7.04 were taken into account in calculating Closing Working Capital or Indebtedness. The Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed indemnification obligations pursuant to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI 7.04 shall survive the Closing until sixty (60) 60 days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end expiration of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice limitations (giving effect to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authorityany extensions and waivers thereof).
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closinghereby indemnifies Buyer, the Company and their respective Affiliates (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies, losses (including Taxes, interest and penalties) and all expenses, including attorneys' and accountants' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company allocable to any period ending on or prior to the Closing Date orDate, as provided in Section 7.3(b), allocable to and (B) any Taxes of the pre-Closing portion Seller or any corporation that is or was a member of any period that begins on an affiliated group of corporations of which the Seller was or before and ends after the Closing Dateis a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company's capital stock pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d8.02(c); or
(iv) , upon notice from Buyer to the Shareholder that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.02(a), the Seller shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify the Seller Representative in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller The Indemnified Taxpayer shall take such action in connection with contesting such claim as the Shareholder Representative shall have the right reasonably request in writing from time to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as time; provided that (A) Buyer within 30 days (or such earlier date that any payment of Taxes is kept reasonably informed of due by the status and progress of Indemnified Taxpayer) after the notice described in (i) above has been delivered, the Shareholder Representative requests that such claim and related proceedingsbe contested, (B) Buyer the Seller shall have agreed to pay to the Indemnified Taxpayer on demand all costs and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense expenses that the Indemnified Taxpayer may incur in connection with contesting such claim claim, including, without limitation, reasonable attorneys' and related proceedingsaccountants' fees and disbursements, and (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall the Seller xhall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount of such Indemnified Taxpayer is requested to payclaim. If any of In the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry case of any judgment or enter into any settlement with respect tosuch claim referred to above, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically shall not make payment of such claim for at least 30 days (or such shorter period as may be 13 required by applicable law) after the costs giving of defending against the claim notice required by (including reasonable attorneys’i) above, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer shall give to the fullest extent provided Shareholder Representative any information reasonably requested relating to such claim and otherwise shall cooperate with the Shareholder Representative in this Section 7.2good faith in order to contest effectively any such claim.
(iii) Subject to the provisions of paragraph (ii) above, the Indemnified Taxpayer shall prosecute such contest to a determination in a court of initial jurisdiction, and if the Shareholder Representative shall reasonably request, the Indemnified Taxpayer shall prosecute such contest to a determination in an appellate court.
(iv) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by Seller Representative pursuant to paragraph (ii)(C) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the final judgment or decree of a court or a final or binding settlement with an administrative agency having jurisdiction thereof, the Indemnified Taxpayer shall promptly pay to Seller of any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority). Notwithstanding the foregoing, the Indemnified Taxpayer shall not be entitled required to settle make any payment hereunder before such time as the Seller shall have made all payments or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment indemnities then due with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerTaxpayer pursuant to this Article VIII or Article VI.
(cd) Notwithstanding anything Anything to the contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties under this Article VI VIII shall survive the Closing and shall continue until sixty (60) days following the end expiration of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallThe Company and the Members agree to indemnify, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company Affiliates (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agree to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies, and losses and all expenses, including, without limitation, attorneys’, accountants’, and experts’ fees and disbursements (all herein referred to as “Losses”) resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company Business or related to the Assets allocable to any taxable period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable or that relates to that portion of any taxable period on or before the pre-Closing portion Date of any period that begins on or before and ends after the Closing Date, (B) any Taxes of the Company or the Members, and (C) any Taxes of any corporation that is or was a member of an Affiliated Group of which the Company was or is a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company’s Assets pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d8.2(c); or
(iv) , upon notice from Buyer to the Company that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.2(a), the Company shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Company in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative The Company shall have the right to defend the Indemnified Taxpayer against any such claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s its choice satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed of the status and progress Company notifies the Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given notice of such claim that the Company will indemnify the Indemnified Taxpayer from and related proceedingsagainst the entirety of any Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (B) Buyer and Bxxxx’s counsel are allowed the Company provides the Indemnified Taxpayer with evidence acceptable to participate at Bxxxx’s expense in such the Indemnified Taxpayer that the Company will have the financial resources to defend against the claim and related proceedingsfulfill his indemnification obligations hereunder, (C) Seller Representative’s if requested by the Indemnified Taxpayer, the Company provides to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel with respect satisfactory to such claim is approved by Buyer the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlythat contest, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, Sellers the Company shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (E) the Company conducts the defense of the claim actively and diligently.
(iii) Subject to the provisions of paragraph (ii) above, the Company shall be entitled to prosecute such contest to a determination in a court of initial jurisdiction, and if the Company shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, the Company shall provide to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(iv) The Company shall not be entitled to settle or to contest any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the good faith judgment of the Indemnified Taxpayer, to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Company pursuant to paragraph (ii)(D) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to the Company any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayers with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before such time as the Company shall have made all payments or indemnities then due with respect to Indemnified Taxpayer pursuant to this Article VIII.
(vi) If any of the conditions in clauses Section 8.2(c)(ii) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or Seller Representative the Company in connection therewith), (yB) Sellers the Company will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements) ), and (zC) Sellers the Company will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.28.2.
(iiid) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Company and the Members under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party the Company by providing written notice to Seller Representative the Company on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(de) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration registration, and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by the Company when due, and Seller Representative will the Company will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxestransfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal Requirementslaw, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smith & Wesson Holding Corp)
Indemnification for Taxes. (a) Seller The Purchaser Indemnified Parties shallshall be indemnified, jointly defended and severally, indemnify Buyer held harmless by the PPB Sub from and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, against any and all Damages directly Losses arising out of, resulting from:
from or related to (i) any breach of or inaccuracy in any representation and warranty contained in Section 3.12 of the Merger Agreement; (ii) Taxes of any of the Company allocable to and its Subsidiaries for any period ending on or prior to the Closing Pre-Acceptance Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Tax Period; (iiiii) any Taxes of any other Person imposed on any of the Company (or Buyer its Subsidiaries for any Pre-Acceptance Date Tax Period, whether imposed as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6 or any similar provision of stateany foreign, state or local Tax law having similar effect, by contract or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d)otherwise; or
and (iv) any breach of or the failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except Company and its Subsidiaries to comply with their obligations under this Section 2; provided, however, that no indemnity shall be provided under this Section 2(a) for any Losses to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment current liability for Taxes that is set forth on the ADS Business Balance Sheet (as such term is defined in the Working Capital Reconciliation Agreement) and taken into account in determining the Acceptance Date Net Working Capital (as such term is defined in the Working Capital Reconciliation Agreement). The amount of all indemnification obligations under this Agreement shall be (a) increased to take account of any net Tax cost actually incurred by the Purchaser Indemnified Party arising out of or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), with any indemnity payments hereunder (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically grossed up for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursementssuch increase) and (zb) Sellers will remain responsible for reduced to take account of any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any net Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim benefit actually realized by the Tax Authority.
(d) Sellers, on Purchaser Indemnified Party arising from the one hand, and Buyer, on incurrence or payment of any such indemnified amount. In computing the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution amount of any such Tax Returns and cost or Tax benefit, the Purchaser Indemnified Party shall be deemed to recognize all other documentationitems of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified amount. For the purposes of this Section 2(a), reference to any “Loss” of any description shall be deemed to include amounts that would have constituted a “Loss” but for the set-off or other utilization of any loss, deduction or credit realized in, or attributable to, a Post-Acceptance Date Tax Period.
Appears in 1 contract
Indemnification for Taxes. Sellers (a) Seller Parties shall, jointly and severally, indemnify Buyer ) shall defend and hold Purchaser and its AffiliatesAffiliates (including the Companies and their Subsidiaries) and their respective members, includingstockholders, after the ClosingRepresentatives, the Company (each herein sometimes referred to as partners, managers, officers and directors harmless on an “Indemnified Taxpayer”), after-tax basis from and against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
: (i) all Taxes and Losses suffered, incurred or paid, directly or indirectly, by Purchaser and its Affiliates (including the Company and its Subsidiaries) as a result of, arising out of, or related to any Taxes failure of any representation or warranty made pursuant to Section 4.14 to be true and correct in all respects (without giving effect to any “material”, “materially”, “materiality”, “Material Adverse Effect”, “material adverse effect”, “material adverse change” or similar qualification contained therein) on and as of the Company allocable to any period ending date of this Agreement and on or prior to and as of the Closing Date oras if made on such date (other than those made on a specified date, which shall be true and correct in all respects as provided in Section 7.3(bof such specified date), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
; (ii) all Taxes imposed on, asserted against or attributable to the properties, income or operations of the Companies and their Subsidiaries or any Taxes of any other Person for which the Companies and their Subsidiaries are otherwise liable, for all Pre-Closing Periods and (iii) all Taxes imposed on the Company (or Buyer Companies and their Subsidiaries as a result of the Company being a disregarded entity post-Closing) (A) as a result provisions of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6 or the analogous provisions of any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer law. In no event shall Sellers be liable for Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights amount of Taxes are included in the computation of Closing Working Capital and Purchaser shall indemnify, defend and hold Sellers and their Affiliates and their representative members, stockholders, partners, managers, officers, directors and agents harmless on an after-tax basis from and against all Taxes of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense Companies and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed their Subsidiaries for all Post-Closing Periods and Taxes of the status Companies and progress of such claim and related proceedingstheir Subsidiaries resulting solely from actions, (B) Buyer and Bxxxx’s counsel that are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment ordinary course of Buyerbusiness, the settlement of, taken or an adverse judgment with respect to, the claim would reasonably caused to be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive taken by Purchaser on the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day Date after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityClosing.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Casella Waste Systems Inc)
Indemnification for Taxes. (a) Seller Parties shall, The USAuto Stockholders shall jointly and severallyseverally indemnify, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save defend and hold harmless LBI and its Affiliates (including, without limitation, USAuto and its Subsidiaries following the Closing) and each Indemnified Taxpayer fromof its and their respective directors, officers, stockholders, employees, agents, representatives and successors and assigns (each an "INDEMNIFIED PARTY") against and in respect of any and all Damages directly resulting from:
Losses, that are incurred, suffered or sustained as a result of, in connection with, related to, incidental to or by virtue of (i) any all Taxes (or the non-payment thereof) of USAuto and its Subsidiaries (but only to the Company allocable to any period extent that such Losses exceed the Final Tax Reserve for all Taxable periods ending on or prior to before the Closing Date or, as provided in Section 7.3(band the portion through the end of the Closing Date for any Taxable period that includes (but does not end on) the Closing Date (the "PRE-CLOSING TAX PERIOD"), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any all Taxes of any other Person imposed on the Company member of an Affiliated Group of which USAuto or any Subsidiary (or Buyer as a result any predecessor of the Company being foregoing) is or was a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 (Bor any analogous or similar state, local, or foreign law or regulation), and (iii) any and all Taxes of any Person imposed on USAuto or any Subsidiary as a transferee or successor, by contract or otherwise under applicable Legal Requirements (pursuant to any law, rule, or regulation, which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to before the Closing Date), or (C) by reason Closing. The USAuto Stockholders shall reimburse LBI for any Taxes of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 USAuto or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that Subsidiary which are the responsibility of Sellers the USAuto Stockholders pursuant to Section 7.2(d); or
(iv) any breach this SECTION 11.2 at least five days prior to payment of such Taxes by LBI or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax ReturnsUSAuto.
(b) In the case of any Taxable period that includes (but does not end on) the Closing Date (a "STRADDLE PERIOD"), the amount of any Taxes based on or measured by income or receipts for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date (and for such purpose, the Taxable period of any partnership or other pass-through entity in which USAuto or any Subsidiary holds a beneficial interest shall be deemed to terminate at such time) and the amount of other Taxes for a Straddle Period which relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire Taxable period multiplied by a fraction the numerator of which is the 55 number of days in the Taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period.
(c) LBI shall prepare and file, or cause to be prepared and filed, with the appropriate Governmental Entity all Tax Returns required to be filed with respect to USAuto and its Subsidiaries for all Pre-Closing Tax Periods that are required to be filed after the Closing Date (a "POST-CLOSING TAX RETURN") and shall pay all Taxes due with respect to such Post-Closing Tax Returns; PROVIDED that, the USAuto Stockholders shall reimburse LBI for any amount that is the responsibility of the USAuto Stockholders pursuant to SECTION 11.2(a) with respect to the taxable periods covered by such Tax Returns at least 5 days prior to payment of such Taxes by LBI.
(d) LBI shall, at least 30 days prior to the due date for any Post-Closing Tax Return, provide to a representative designated by the USAuto Stockholders (the "REPRESENTATIVE") a draft of such Post-Closing Tax Return. If the Representative objects to the treatment of any item on any such Post-Closing Tax Return, it shall within 10 days after delivery of such Post-Closing Tax Return notify LBI in writing that it so objects, specifying with particularity any such item and stating the specific factual or legal basis for any such objection. If such a notice of objection shall be duly delivered, LBI and the Representative shall negotiate in good faith to resolve their disagreement. If LBI and the Representative have not resolved their disagreement within 5 business days after receipt by LBI of such notice, they shall refer the matter for resolution to a mutually acceptable nationally recognized accounting firm (the "THIRD PARTY ACCOUNTANT"), the decision of which shall be binding on LBI, the Representative, and the USAuto Stockholders; PROVIDED that, if the Third Party Accountant cannot resolve such disagreement with respect to such Tax Return at least 5 business days prior to the due date of such Tax Return, such Tax Return shall be filed as prepared by LBI, and thereafter, to the extent the Third Party Accountant resolves such dispute in a manner which would require the amendment of such Tax Return, such Tax Return shall be amended and filed by LBI in a manner consistent with such resolution. In such case, promptly upon resolution by the Third Party Accountant and the filing of an amended Tax Return, the liability of the USAuto Stockholders and LBI for Taxes with respect to such Tax Return shall be redetermined, and any payments made between such parties prior to the filing of such amended Tax Return shall be appropriately adjusted to reflect such redetermination. The costs, fees and expenses of the Third Party Accountant shall be borne (i) by LBI if the net resolution of the disputed items substantially agrees with the position of the USAuto Stockholders, (ii) by the USAuto Stockholders if the net resolution of the disputed items substantially agrees with the position of LBI and (iii) otherwise equally by LBI, on the one hand, and the USAuto Stockholders on the other.
(e) Except with respect to refunds or credits of Taxes set forth on the Latest USAuto Balance Sheet or resulting from a carryback of a net operating loss, net capital loss, deduction, Tax credit or similar item sustained or arising in any period (or portion thereof) beginning after the Closing Date (which refunds and/or credits shall be for the account of LBI), any refunds or credits of Taxes of USAuto for any taxable period ending on or before the Closing Date shall be for the account of the USAuto Stockholders. Any refunds or credits of Taxes of the Surviving Corporation for any taxable period beginning after the Closing Date shall be for the account of LBI. Any refunds or credits of Taxes of either USAuto or the Surviving Corporation for any Straddle Period shall be equitably apportioned between the USAuto Stockholders and LBI.
(f) If a written claim is shall be made by any Tax Authority authority that, if successful, would might result in (i) an indemnity payment to LBI pursuant to SECTION 11.2(a) or (ii) an increase in the indemnification Tax liabilities of an Indemnified Taxpayerthe USAuto Stockholders for a Tax period ending on or before the Closing Date or a portion of the Straddle Period ending on the Closing Date, the Indemnified Taxpayer LBI shall promptly notify Seller the Representative in writing of such fact; provided that claim (a "TAX CLAIM"). With respect to any failure Tax Claim (other than a Tax Claim relating solely to give such notice will not waive any rights Taxes for a Straddle Period), the Representative shall be entitled at the expense of the Indemnified Taxpayer except USAuto Stockholders to control all proceedings taken in connection with such Tax Claim (including selection of counsel) and, without limiting the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against foregoing, may in its sole discretion pursue or forego any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related all administrative appeals, proceedings, (B) Buyer hearings and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel conferences with any Tax authority with respect to such claim is approved by Buyer thereto, and may, in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlysole discretion, and (D) if the applicable Indemnified Taxpayer is requested to either pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers refund where applicable law permits such refund suits or conxxxt the Tax Claim in any permissible manner; PROVIDED that the Representative shall have advanced to such Indemnified Taxpayer, on an interest free basis, obtain the full amount such Indemnified Taxpayer is requested to pay. If any prior written consent of the conditions in clauses LBI (Awhich consent shall not be unreasonably withheld or delayed) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter before entering into any settlement with respect toof a Tax Claim if the resolution or settlement of such claim could have the effect of increasing the Tax liability or reducing any Tax Asset of LBI, the claim Surviving Corporation or any of their Subsidiaries; PROVIDED FURTHER that LBI shall have the right to participate in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and such proceedings at its own expense; PROVIDED FURTHER that if the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not decline to control the proceedings, LBI shall assume control of the proceedings at its expense and shall be entitled to resolve and settle or to contest any claim relating to Taxes all issues without obtaining the consent of Buyerthe Representative. Notwithstanding the above, LBI shall control all proceedings taken in connection with any Tax Claim relating solely to Taxes for a Straddle Period and, to the extent the settlement of such Tax Claim would result in an indemnification obligation under SECTION 11.2(a) or a Tax liability of USAuto or the USAuto Stockholders under SECTION 11.2(b) or created by operation of law, shall not settle a Tax Claim relating solely to Taxes for a Straddle Period without the Representative's prior written consent, which consent shall not be unreasonably withheld, conditioned withheld or delayed, if, ; PROVIDED that the Representative shall have the right to participate in any such proceedings at the good faith judgment expense of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerUSAuto Stockholders.
(cg) Notwithstanding anything Promptly following the Closing Date, LBI shall prepare, or cause to be prepared, (1) an unaudited consolidated balance sheet of USAuto as of the Closing Date (the "CLOSING USAUTO BALANCE SHEET"), which shall be prepared in this Agreement accordance with the principles used in preparing the Latest USAuto Balance Sheet and (2) a calculation of the Closing Tax Reserve, which shall be (i) calculated by reference to the contrary, Latest USAuto Balance Sheet rather than the indemnification obligations "Final USAuto Balance Sheet," as adjusted for operations from the date of the Seller Parties under this Article VI shall survive Latest Balance Sheet through the Closing until sixty (60) days following Date in accordance with the end past custom and practice of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred USAuto in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary filing its Tax Returns and other documentation for Taxes paid during such period and (ii) calculated in a manner consistent with respect the principles used in preparing the Latest USAuto Balance Sheet. Within 10 business days after the delivery of the Closing USAuto Balance Sheet to all such Transfer Taxesthe Representative (the "REVIEW PERIOD"), and, if required by applicable Legal Requirements, Buyer willthe Representative shall notify LBI in writing whether or not he disagrees with the Closing USAuto Balance Sheet and the calculation of the Closing Tax Reserve, and will cause its Affiliates toif the Representative does so disagree, join he shall specify in such notice his suggested adjustments to the execution Closing USAuto Balance Sheet and the calculation of any the Closing Tax Reserve. If such a notice of disagreement shall be duly delivered, LBI and the Representative shall negotiate in good faith to resolve their disagreement. If the Representative and LBI fail to resolve such disagreement within 20 business days after the expiration of the Review Period, they shall refer the matter for resolution to the Third Party Accountant, the decision of which shall be binding on LBI, the Representative and the USAuto Stockholders. The costs, fees and 57 expenses of the Third Party Accountant shall be borne equally by LBI and the USAuto Stockholders. The term "FINAL USAUTO BALANCE SHEET" and "FINAL TAX RESERVE" shall mean the following: (i) if LBI and the Representative agree upon the Closing USAuto Balance Sheet and the calculation of the Closing Tax Returns Reserve or if the Representative fails to notify LBI prior to the expiration of the Review Period that the Representative disagrees with the Closing USAuto Balance Sheet or calculation of the Closing Tax Reserve, it shall mean the Closing USAuto Balance Sheet or the Closing Tax Reserve as prepared by LBI; (ii) if LBI and other documentationthe Representative agree upon adjustments to the Closing USAuto Balance Sheet and/or calculation of the Closing Tax Reserve, it shall mean the Closing USAuto Balance Sheet and/or calculation of the Closing Tax Reserve as adjusted by agreement of LBI and USAuto; or (iii) if LBI and the Representative fail to agree on adjustments to the Closing USAuto Balance Sheet and/or calculation of the Closing Tax Reserve, it shall mean the Closing USAuto Balance Sheet and/or calculation of the Closing Tax Reserve as adjusted by the Third Party Accountant.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from any and all Damages directly resulting fromIndemnifiable Losses to the extent arising out of the following:
(i) any Taxes with respect to the Company for all Pre-Closing Tax Periods (including all Taxes attributable to the Restructuring), except:
a. to the extent any such Tax is attributable to an adjustment that results in an increase in the taxable income of the Company allocable to for any period ending on Pre-Closing Tax Period and an equal or prior greater decrease in the taxable income of the Company in a Post-Closing Tax Period; and
b. to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion extent of any period that begins on or before and ends after accrued liability for Taxes taken into account in the Closing Datecalculation of the Final Adjustment Amount;
(ii) any Taxes Tax Liability of any member of the Seller Group other Person imposed on than the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to any provision of joint and several liability under Treasury Regulation Section 301.77011.1502-3 or 6 (and any similar corresponding provision of state, local local, or foreign Legal Requirementslaw;
(iii) any liability for Taxes, or any liability attributable to any Tax, for which the Company may be liable, imposed on or attributable to any Person other than the Company for or with respect to any Pre-Closing Tax Period or portion thereof , as a transferee or successor or by contract (other than contracts entered into in the ordinary course of any Transfer Taxes that are the responsibility of Sellers business or pursuant to Section 7.2(dcommercial lending arrangements); or);
(iv) any breach of any representation or failure warranty set forth in Section 3.10(d), (f), (j), (l), (m), (n), (o) or (p) or Section 3.25 (without regard to perform any representation, warranty, materiality or Material Adverse Effect qualifier contained therein);
(v) any breach or nonfulfillment of any agreement or covenant or agreement set forth in this Agreement relating to Article VIII; or
(vi) Seller’s share of any Conveyance Taxes or Tax Returnsunder Section 8.5.
(b) Buyer agrees to indemnify and hold harmless the Seller Indemnified Persons from and against (i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except and all liabilities for Taxes with respect to the extent the rights of the indemnifying party are actually materially prejudiced.
Company for all Post-Closing Tax Periods and (ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller RepresentativeBuyer’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry share of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Conveyance Taxes under Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer8.5.
(c) Notwithstanding anything For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in this Agreement the following manner:
(i) in the case of Taxes based on or measured by income, gain, or receipts, or related to the contraryactual or deemed sale or transfer of property, or which are withholding Taxes, such Taxes shall be allocated based on an interim closing of the books as of the day on which the Closing occurs (except that exemptions, allowances, deductions or similar amounts that are calculated on an annual basis, such as the deduction for depreciation, shall be ratably apportioned on a per diem basis); and
(ii) in the case of Taxes calculated on a periodic basis, the indemnification obligations portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Seller Parties under this Article VI shall survive Straddle Period ending on the Closing until sixty (60) Date and the denominator of which is the number of days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationentire Straddle Period.
Appears in 1 contract
Samples: Stock Purchase Agreement (CNO Financial Group, Inc.)
Indemnification for Taxes. (a) Seller Parties shallshall be responsible for, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Income Taxes of the Company allocable imposed on Reserves LLC or Reserves LLC's interest in Partnership, and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys' fees, and expenses arising therefrom, relating to any period (A) taxable periods or portions thereof ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements Income Taxes resulting from the application of Treas. Reg. (which Taxes described in this clause (BS) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6 or any similar provision of comparable state, local or foreign Legal Requirements;
tax law attributable to Tesoro Parent, or any corporation or entity which is or has been affiliated with or been part of a combined, unitary or affiliated group with Tesoro Parent, and (iiiC) the portion of the Income Taxes for any Transfer Straddle Period (as defined in subsection 16.1(e)) allocable to Sellers with respect to either Reserves LLC or Reserves LLC's interest in the Partnership under subsection 16.2(e) and (ii) all Other Taxes that are imposed on Reserves LLC or Reserves LLC's interest in the responsibility of Sellers pursuant Partnership relating to the taxable periods or portions thereof ending on or before the Effective Time (allocated as described in Section 7.2(d13.3); or
(iv) provided, Sellers shall not be responsible for, and shall not be required to indemnify Buyer against, any breach of or failure Taxes to perform any representation, warranty, covenant or agreement the extent that such Taxes do not exceed the accrued liability for Taxes on the Balance Sheets which are taken into account in this Agreement relating to Taxes or Tax Returnsdetermining the Working Capital.
(b) Buyer shall be responsible for and shall indemnify Sellers against all (i) If a written claim is made by any Tax Authority that, if successful, would result Income Taxes imposed upon Reserves LLC or Reserves LLC's interest in the indemnification Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive, or other), reasonable attorneys' fees and expenses arising therefrom, relating to (A) taxable periods beginning after the Closing Date or (B) the portion of an Indemnified Taxpayerthe Income Taxes for any Straddle Period which are allocable to Buyer under subsection 16.2(e), and (ii) except as provided in Section 13.3 and in this Article XVI, all Other Taxes imposed upon Reserves LLC or Reserves LLC's interest in the Indemnified Taxpayer Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys fees and expenses arising therefrom arising in or relating to taxable periods or portions thereof beginning after the Effective Time (allocated as described in Section 13.3).
(c) Each Party shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights the other Party of the Indemnified Taxpayer except commencement of any demand, claim, audit, examination, Action or other proposed change or adjustment by any Taxing Authority concerning any Tax which could give rise to a claim for indemnity pursuant to subsection 16.1(a) or subsection 16.1(b), as the extent case may be (each a "Tax Claim"). Such notice shall contain factual information describing the rights asserted Tax Claim in reasonable detail and shall include copies of the indemnifying party are actually materially prejudicedany notice or other document received from any Taxing Authority in respect of any such asserted Tax Claim.
(iid) Seller Representative Seller, at its own expense, shall have the sole right to represent Reserves LLC and the Partnership's interests in any Tax Claim for Taxes for which it is indemnifying Buyer against and to employ counsel of its choice. Buyer shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Action at its own expense. Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and not consent to the entry of any judgment or enter into any settlement with respect to, that reasonably would be expected to have an adverse effect on the claim Income Taxes of Reserves LLC or Reserves LLC's interest in the Partnership in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and period after the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes Closing Date without the consent of Buyer's consent, which consent shall not be unreasonably withheld. Buyer's consent shall in no way reduce any indemnification due to Buyer under subsection 16.1(a). If Seller elects to control the defense, conditioned compromise or delayedsettlement of any Tax Claim, if, Seller shall keep Buyer informed of the progress and disposition of such Tax Claim. Buyer shall handle any other Tax Claims of Reserves LLC or Reserves LLC's interest in the good faith judgment of BuyerPartnership, the and Buyer shall be entitled to defend, compromise or settle such Tax Claims in its sole discretion without in any way reducing its rights to indemnification under subsection 16.1(a), unless any such settlement ofwould give rise to a tax claim against Seller, or an adverse judgment with respect toand in such event such settlement shall be subject to Seller's consent, the claim would reasonably which shall not be expected to adversely affect any Indemnified Taxpayerunreasonably withheld.
(ce) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for taxable period of Reserves LLC or the Partnership beginning before and ending after the Closing Date (a "Straddle Period"), Buyer shall control, and Seller, at its own expense, shall have the right to participate in, the defense and settlement of any Tax for which a Tax Authority asserts a claim within ninety (90) days before Claim and each Party shall cooperate with the end other Party and there shall be no settlement or closing or other agreement with respect thereto without the consent of the applicable statute of limitationsother Party, an Indemnified Taxpayer which consent shall not be treated as having provided timely notice unreasonably withheld; provided, that if either Party shall refuse (the "Refusing Party") to such Seller Party by providing written notice consent to Seller Representative on any settlement, closing or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim other agreement agreed to by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation relevant Taxing Authority with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and Claim that the other documentation.party (the "Accepting Party") proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party's Liability with respect to the subject matter of the Proposed Settlement shall be limited to the amount that such Liability would have been if the Proposed Settlement had been accepted, and
Appears in 1 contract
Samples: Purchase Agreement (Eex Corp)
Indemnification for Taxes. (a) Seller Parties shallSubject to the terms and conditions of Section 10.4, jointly from and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, Closing Date Enron shall be liable for and protect, save shall indemnify and hold harmless each Indemnified Taxpayer fromEOG and its Subsidiaries (collectively, any the "EOG Tax Indemnitees")from and all Damages directly resulting fromagainst the following:
(i) any Any Taxes of an Acquired Company or of any member of the Company allocable Enron Group (other than EOG or any member of the EOG Group (other than an Acquired Company) which was also a member of the Enron Group) for any taxable period, except to the extent provided in Section 10.3(b);
(ii) Any Taxes imposed on EOG or EOG International with respect to the Share Exchange to the extent resulting from a breach by Enron of any period ending representation or warranty made pursuant to Section 3.10 of this Agreement or covenant made pursuant to Section 6.2 of this Agreement;
(iii) Any Taxes imposed on EOG or prior EOG International with respect to the Share Exchange to the extent resulting from any of the following events: (1) within two years following the Closing Date orthe percentage ownership by Enron or any Acquired Company of the stock of an Acquired Company is decreased to less than 80% of its ownership percentage of such stock immediately after the Share Exchange, as (2) within two years following the Closing Date any Acquired Company redeems or otherwise acquires more than 20 percent of its stock outstanding immediately after the Share Exchange, (3) within two years following the Closing Date any Acquired Company disposes of any of its assets other than in the ordinary course of business, or (4) within two years following the Closing Date Enron sells the Retained Shares to one Person (or a group of Persons composed of one Person and other Persons related to such Person within the meaning of section 267(b) or 707(b)(1) of the Code); and
(iv) Any withholding Tax imposed by India with respect to interest paid or accrued by EOG India Cayco.
(b) Subject to the terms and conditions of Section 10.4, from and after the Closing Date EOG shall be liable for and shall indemnify and hold harmless Enron, EOG India HoldCo and their respective Subsidiaries (collectively, the "Enron Tax Indemnitees") from and against the following:
(i) Any Taxes of any member of the EOG Group (whether pursuant to Treas. Reg. Section 1.1502-6 or otherwise) other than any Acquired Company for any taxable period except to the extent provided in Section 7.3(b10.3(a), allocable ;
(ii) Any Taxes imposed with respect to any Subpart F income (within the meaning of section 952 of the Code) of any of the Acquired Companies attributable (using an interim closing of the books approach) to the pre-Closing portion of any period that begins on or before and ends after January 1, 1999 through the Closing Date;
(iiiii) any Any Taxes imposed on Enron with respect to the Share Exchange to the extent resulting from a breach by EOG of any other Person imposed on the Company (representation or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers warranty made pursuant to Section 7.2(d); or4.9 of this Agreement;
(iv) any breach Any Taxes imposed on Enron with respect to the Share Exchange if continuity of or failure to perform any representation, warranty, covenant or agreement interest in this Agreement relating to Taxes or Tax ReturnsEOG within the meaning of Treas. Reg.
Section 1. 355-2(c) is not maintained with respect to the Share Exchange unless the absence of such continuity of interest was not a contributing cause with respect to the imposition on Enron of any such Taxes; provided, however, that if EOG asserts that continuity of interest was maintained with respect to the Share Exchange and/or that any absence of continuity of interest was not a contributing cause with respect to the imposition of any such Taxes, EOG shall bear the burden of proof and be required to prove such matters by clear and convincing evidence; and
(iv) If a written claim is made Any Texas franchise Taxes (measured by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except contributions described in Section 2.1 of this Agreement) imposed on EOG India HoldCo to the extent the rights resulting from a breach of the indemnifying party are actually materially prejudicedrepresentation contained in Section 4.9(j) of this Agreement.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, Sellers shall jointly and severally, severally indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each of the Company and the Buyer Indemnified Taxpayer fromParties from and against, and shall pay to the Company or the Buyer Indemnified Parties the amount of, any and all Damages directly resulting from:
Losses for: (i) any all Taxes (or the nonpayment thereof) of the Company allocable to for any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the prePre-Closing portion of Tax Period (subject, in any period that begins on or before and ends after the Closing Date;
event, to Section 8.15 below); (ii) any and all Taxes of any Person (other Person than the Company) imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, by contract or otherwise under applicable Legal Requirements (pursuant to any Law, which Taxes described in this clause (B) relate to an event or transaction occurring on or prior before December 31, 2008 (subject, in any event, to the Closing DateSection 8.15 below), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
; and (iii) any Tax incurred or suffered by the portion Company, Buyer or any of their respective Affiliates arising out of any Transfer Taxes that are the responsibility inaccuracy in or misrepresentation by Sellers of Sellers pursuant to any representation or warranty contained in Section 7.2(d); or
(iv) 4.7 or any breach of or failure to perform any representation, warranty, covenant or agreement contained in this Agreement relating to Taxes or Tax ReturnsSection 8.8.
(ib) If a written claim is made Any amount paid to the Company or Buyer pursuant to this Section 8.8 shall be paid by any Tax Authority that, if successful, would result in the indemnification wire transfer of immediately available funds to an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative account designated in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) no later than 10 business days after Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, makes written demand upon Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayertherefor.
(c) Notwithstanding anything in this Agreement to the contrary, the The indemnification obligations of the Seller Parties Sellers under this Article VI Section 8.8 shall survive until the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end expiration of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) SellersThe indemnification obligations of Sellers for which they may be liable to Buyer pursuant to this Section 8.8 shall be subject to adjustment to take into account, on as a reduction of the one handaggregate indemnification obligations of Sellers otherwise arising out of the matter in question, and Buyer, on the other hand, shall divide evenly value of any quantifiable net Tax benefit resulting either from the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other matter giving rise to such Taxes and fees (including any penalties and interest) incurred indemnification obligations of Sellers or from the payment of indemnification amounts pursuant to this Section 8.8 in connection with this Agreement respect of the matter in question (“Transfer TaxesBuyer Tax Benefit”), and Seller Representative will file all necessary which Buyer Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.Benefit is actually realized by
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallSubject to the limitations and other provisions set forth in Article IX to the extent that they are applicable to this Article X as provided in Section 10.10, jointly from and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, Parent shall be responsible for and protect, save shall indemnify and hold harmless each Indemnified Taxpayer from, any Buyer Indemnitees from and all Damages directly resulting from:
against (i) the failure of any representation or warranty made by the Company or Parent in Section 3.17 to be true and correct as of the Closing Date (or as of the date made, where such representation or warranty relates to an earlier date); (ii) all Taxes of the Company allocable and any of its Subsidiaries attributable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the prePre-Closing portion Taxable Period (including, for the sake of clarity and not by way of limitation, any period that begins on Tax incurred in or before and ends after the with respect to any non-U.S. jurisdiction in a Pre-Closing Date;
Taxable Period); (iiiii) any all Taxes of any other Person imposed on the Company or any of its Subsidiaries (A) pursuant to Treasury Regulation Section 1.1502-6 (or Buyer as a result comparable provision of state, local or foreign law) by virtue of the Company or any of its Subsidiaries being or having been a disregarded entity post-Closing) (A) as member of a result of any written consolidated, combined, affiliated, unitary or other Tax sharing or Tax allocation agreement in effect group on or prior to the Closing Date, Date (without duplication of amounts described in clause (ii) of this Section 10.1(a)) or (B) as a transferee or successor, by contract or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d)otherwise; or
and (iv) any Losses of any Buyer Indemnitee incurred as a result of any breach by Parent and its Affiliates of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority thatArticle X; provided, if successfulhowever, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer that Parent shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlybe liable for, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) not indemnify Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement Indemnitees with respect to, any liability for Taxes resulting from transactions or actions taken by Buyer, Buyer Affiliates, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer Company or any of its Subsidiaries after the Closing, except for transactions or actions undertaken in the ordinary course of business on the Closing Date (any such liability for Taxes, other Indemnified Taxpayer may suffer than Taxes with respect to transactions or actions undertaken in the fullest extent provided in this Section 7.2ordinary course of business on the Closing Date, a “Post-Closing Tax Liability”).
(iiib) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without From and after the consent of BuyerClosing, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement ofCompany and the Subsidiaries of the Company shall be responsible for and shall indemnify and hold harmless the Seller Indemnitees against, or an adverse judgment with respect to(i) all Taxes of the Company and any of its Subsidiaries, the claim would reasonably be expected to adversely affect excluding Taxes for which Parent is responsible under Section 10.1(a); (ii) all Post-Closing Tax Liabilities; and (iii) any Indemnified Taxpayer.Losses of any Seller Indemnitee incurred as a result of any breach by Buyer and its Affiliates of any covenant in this Article X.
(c) Notwithstanding anything in this Agreement All Taxes and Tax liabilities with respect to the contraryincome, the indemnification obligations property or operations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end Company or any of the applicable statutes of limitations. With respect its Subsidiaries that relate to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer Straddle Period shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellersapportioned between Parent, on the one hand, and Buyer, on the other, as follows: (i) in the case of Taxes other handthan income, sales and use, gross receipts and withholding Taxes, on a per diem basis, and (ii) in the case of income, sales and use, gross receipts and withholding Taxes, as determined from the books and records of the Company as though the taxable year of the Company terminated at the close of business on the Closing Date.
(d) Payments by Buyer and the Company or Parent of any amount due under this Section 10.1 shall be made within thirty (30) Business Days following written notice that payment of related Taxes to the appropriate Tax Authority is due; provided, that no Party shall be required to make any payment earlier than five (5) Business Days before the related Taxes are due to the appropriate Tax Authority. In the case of a Tax that is contested in accordance with the provisions of Section 10.3, payment of the Tax to the appropriate Tax Authority shall be considered to be due no earlier than the date a final determination to such effect is made by the appropriate Governmental Entity.
(e) Claims under this Section 10.1 shall survive until thirty (30) days following the expiration of the period of limitations on the assessment of the Taxes to which the claims relate (the “Tax Indemnity Period”). The written assertion prior to expiration of the Tax Indemnity Period of any claim by a party for indemnification under this Section 10.1, which assertion specifies the underlying facts supporting the claim as opposed to general assertions, shall divide evenly cause the financial responsibility for claim asserted to survive until final resolution of such claim.
(f) All indemnification payments under Article IX and this Article X shall be treated by all transferParties as adjustments to the Purchase Price, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if unless required otherwise by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationApplicable Law.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, The Company and the Shareholder hereby jointly and severally, severally agree to indemnify Buyer and its Affiliates, including, after the Closing, the Company Affiliates (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agree to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies, losses (including Taxes, interest and penalties) and all expenses, including attorneys' and accountants' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company allocable to any period ending on or prior to the Closing Date orDate, as provided in Section 7.3(b), allocable to and (B) any Taxes of Company or any corporation that is or was a member of an affiliated group of corporations of which the pre-Closing portion of any period that begins on Company was or before and ends after the Closing Dateis a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company's capital Asset pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d8.2(c); or
(iv) , upon notice from Buyer to the Shareholder that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.2(a), the Shareholder shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Shareholder in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative The Indemnified Taxpayer shall have take such action in connection with contesting such claim as the right Shareholder shall reasonably request in writing from time to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as time; provided that (A) Buyer within 30 days (or such earlier date that any payment of Taxes is kept reasonably informed of due by the status and progress of Indemnified Taxpayer) after the notice described in (i) above has been delivered, the Shareholder request that such claim and related proceedingsbe contested, (B) Buyer the Shareholder shall have agreed to pay to the Indemnified Taxpayer on demand all costs and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense expenses that the Indemnified Taxpayer may incur in connection with contesting such claim claim, including, without limitation, reasonable attorneys' and related proceedingsaccountants' fees and disbursements, and (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue sxx for a refund, and if so requested by Bxxxx, Sellers the Shareholder shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount of such Indemnified Taxpayer is requested to payclaim. If any of In the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry case of any judgment or enter into any settlement with respect tosuch claim referred to above, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically shall not make payment of such claim for at least 30 days (or such shorter period as may be required by applicable law) after the costs giving of defending against the claim notice required by (including reasonable attorneys’i) above, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer shall give to the fullest extent provided Shareholder any information reasonably requested relating to such claim and otherwise shall cooperate with the Shareholder in this Section 7.2good faith in order to contest effectively any such claim.
(iii) Seller Representative Subject to the provisions of paragraph (ii) above, the Indemnified Taxpayer shall prosecute such contest to a determination in a court of initial jurisdiction, and if the Shareholder shall reasonably request, the Indemnified Taxpayer shall prosecute such contest to a determination in an appellate court.
(iv) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by Shareholder pursuant to paragraph (ii)(C) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the final judgment or decree of a court or a final or binding settlement with an administrative agency having jurisdiction thereof, the Indemnified Taxpayer shall promptly pay to Shareholder any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority). Notwithstanding the foregoing, the Indemnified Taxpayer shall not be entitled required to settle make any payment hereunder before such time as the Shareholder shall have made all payments or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment indemnities then due with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerTaxpayer pursuant to this Article VIII.
(cd) Notwithstanding anything Anything to the contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Shareholder under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Empire Financial Holding Co)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, BGCI shall indemnify Buyer and its Affiliates, including, after the Closinghold harmless Buyer from and against all Taxes of any Transferred Entity (other than Bealx Xxxerating Company, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any responsibility for the Taxes of which shall be governed by the Company allocable to any period ending on Bealx Xxx Sharing Agreement) or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company entity for which such a Transferred Entity is liable (including but not limited to pursuant to Treasury Regulation Section 1.1502-6 or Buyer as a result of the Company being a disregarded entity post-Closingcomparable state tax provisions) (Ai) as a result of any written Tax sharing or Tax allocation agreement in effect with respect to all periods ending on or prior to the Closing Date, (Bii) as with respect to any period beginning before the Closing Date and ending after the Closing Date, but only with respect to the portion of such period up to and including the Closing Date (such portion, a transferee "Pre-Closing Partial Period"), and (iii) resulting from a breach of a representation or successor, or otherwise under applicable Legal Requirements warranty contained in Section 2.7. BGCI shall be entitled to any net refunds of Taxes (which Taxes including interest thereon) with respect to periods described in clauses (i) and (ii) above, except to the extent such ------------ [xxx] These portions of this clause exhibit have been omitted and filed separately with the Commission pursuant to a request for confidential treatment. 51 refund arises as the result of a carryback of a loss or other tax benefit from a period beginning after the Closing Date.
(Bb) relate Buyer shall indemnify BGCI and hold harmless BGCI from and against all Taxes of any Transferred Entity (other than Bealx Xxxerating Company, the responsibility for the Taxes of which shall be governed by the Bealx Xxx Sharing Agreement) or the Taxes of any other entity for which such a Transferred Entity is liable (i) with respect to an event all periods beginning after the Closing Date, (ii) with respect to any period beginning before the Closing Date and ending after the Closing Date, but only with respect to the portion of such period beginning the day after the Closing Date (such portion, a "Post-Closing Partial Period") and (iii) resulting from a breach of a representation or transaction occurring warranty contained in Section 3.8. Buyer shall be entitled to any refunds of Taxes of any Transferred Entity or the Tax of any other entity for which such a Transferred Entity is liable, with respect to all periods beginning after the Closing Date and all Post-Closing Partial Periods.
(c) Any Taxes for a period including a Pre-Closing Partial Period and a Post-Closing Partial Period shall be apportioned between such Pre- Closing Partial Period and such Post-Closing Partial Period based, in the case of real and personal property Taxes, on a per diem basis and, in the case of other Taxes, on the actual activities, taxable income or taxable loss of the applicable entity during such Pre-Closing Partial Period and such Post-Closing Partial Period.
(d) BGCI and Buyer agree to give prompt notice to each other of any proposed adjustments to Taxes for periods ending on or prior to the Closing 52 Date), or (C) by reason any Pre-Closing Partial Period. BGCI and Buyer shall cooperate with each other in the conduct of being a member, partner or similar owner of an equity interest in a partnership, limited liability company any audit or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or proceedings involving any similar provision of stateTransferred Entity for such periods and each may participate at its own expense, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative BGCI shall have the right to defend against control the conduct of any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed audit or proceeding for which all or a portion of the status and progress resulting Tax is covered by the indemnity provided in paragraph (a) of this Section 9.6. Notwithstanding the foregoing, BGCI shall not settle or otherwise resolve any such claim and related proceedingsclaim, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult withsuit, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes proceeding without the written consent of Buyer, which such consent shall not to be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) If the Closing occurs, the Seller Parties shall, jointly agrees from and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred Closing to as an “Indemnified Taxpayer”), against, and protect, save indemnify and hold harmless each Indemnified Taxpayer fromthe Investor Indemnitees from and against any Losses suffered or incurred by them, or any and all Damages directly resulting from:
of them, arising out of, in connection with or otherwise related to (i) any Taxes (other than Transfer Taxes) of members of the Company allocable to any period ending on or prior to Group for the Closing Date or, as provided in Section 7.3(b), allocable to the prePre-Closing portion of any period that begins on or before and ends after the Closing Date;
Tax Period, (ii) any Taxes of any other Person imposed on members of the Company Group arising (directly or Buyer indirectly) as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing DateTransactions, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) Taxes of the portion Seller or any of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
its Affiliates, (iv) any breach Transfer Taxes allocable to the Seller pursuant to Section 8.8(c), (v) any inaccuracy of a representation or warranty set forth in Section 3.13 (it being agreed that for purposes of determining the existence of any such inaccuracy or the amount of any Loss with respect thereto, all such representations and warranties that are qualified based on the Knowledge of the Seller, as to materiality or by reference to a Material Adverse Effect shall be deemed to be not so qualified), (vi) the failure by any member of the Company Group to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
and (ivii) If a written claim is made by any Tax Authority thatand all actions, if successfulsuits, would result in the indemnification of an Indemnified Taxpayerproceedings, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except assessments, judgments, damages, awards, costs and expenses (including third-party fees and expenses) to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right incident to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is foregoing or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement the enforcement of the rights of any Investor Indemnitee with respect to the foregoing.
(b) In furtherance of the foregoing, in the case of any taxable period that includes (but does not end on) the Closing Date (a “Transfer TaxesStraddle Period”), (i) real, personal and Seller Representative will file all necessary intangible property taxes (“Property Taxes”) for the Pre-Closing Tax Returns and other documentation with respect Period shall be equal to all the amount of such Transfer TaxesProperty Taxes for the entire Straddle Period multiplied by a fraction, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join the numerator of which is the number of days during the Straddle Period that are in the execution Pre-Closing Tax Period and the denominator of any which is the number of days in the Straddle Period and (ii) Taxes (other than Property Taxes) for the Pre-Closing Tax Period shall be computed as if such Tax Returns and other documentationtaxable period ended as of the close of business on the Closing Date.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
, the Members (ii) any Taxes and, by virtue of any other Person imposed on approval of the Merger by the holders of Company (or Buyer Membership Units in accordance with the Georgia LLCA and as a result of the potential reduction in the Merger Consideration up to the amount of the Escrow Shares for claims made pursuant to this Article X, each other holder of Company Membership Units immediately prior to the Effective Time) hereby agree, jointly and severally but any liability arising hereunder being a disregarded entity post-Closinglimited strictly to be in proportion (and not exceed) their respective ownership interests in the Escrow Fund, to indemnify, defend and hold harmless Buyer and its direct and indirect subsidiaries (Aincluding the Surviving Company after the Effective Time) from any and all Taxes, together with any costs, expenses, losses or damages, including reasonable expenses of investigation and attorneys' and accountants' fees and expenses, arising out of or incident to the determination, assessment or collection of such Taxes reduced by any refunds or recoveries of Taxes, including interest thereon, from offsetting adjustments to any other taxable period of the Company that arise as a direct result of any written adjustments giving rise to the claim for an indemnification for Taxes hereunder (collectively, "Tax sharing Losses") (i) imposed on the Company or Tax allocation agreement any of its subsidiaries in effect respect of its income, business, property or operations or for which it may otherwise be liable for any taxable period or portion thereof ending on or prior to the Closing Date, or (Bii) resulting from the inaccuracy or breach as a transferee of the date hereof or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to as of the Closing Date), Date of the Company's representations and warranties set forth in Section 5.11 or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement the Members' covenants set forth in Section 8.02. Notwithstanding anything contained in this Agreement relating Article X to Taxes or Tax Returnsthe contrary, Sections 10.01, 10.04 and 10.05 shall not apply to any indemnification contemplated by this Section 10.09.
(ib) If a written any claim (an "Indemnified Tax Claim") is made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified TaxpayerBuyer, the Company or any of its subsidiaries (the "Tax Indemnified Taxpayer Party") by the holders of Company Membership Units immediately prior to the Effective Time (including the Members), the Tax Indemnified Party shall promptly promptly, but in no event later than 90 days after receipt of notice from the taxing authority of such claim, notify Seller the Members' Representative in writing of such fact; provided, however, that the failure to provide such notice within such 90-day period shall not relieve the holders of Company Membership Units immediately prior to the Effective Time (including the Members) of their obligations hereunder provided that any such failure to give shall not prevent the Members' Representative from contesting such notice will not waive any rights Indemnified Tax Claim in accordance with the provisions of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudicedSection 10.09(c).
(iic) Seller Buyer shall take such reasonable action in connection with a Proceeding involving an Indemnified Tax Claim as the Members' Representative shall have reasonably request in writing from time to time, including the right to defend against selection of counsel and experts and the execution of powers of attorney; provided that (i) within 30 days after the notice required by Section 10.09(b) of this Agreement has been delivered (or such earlier date that any claim under subsection (b)(i) at Sellers’ expense and with counsel payment of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel Taxes with respect to such claim is approved due but in no event sooner than 5 days after the Members' Representative's receipt of such notice), the Members' Representative's request that such claim be contested, (ii) the Members' Representative shall have agreed to pay to the Tax Indemnified Party all costs and expenses that the Tax Indemnified Party incurs in connection with contesting such claim, including, without limitation, reasonable attorneys' and accountants' fees and disbursements, (iii) such action would not likely increase the amount of Taxes payable by Buyer in Buyer, the Company or any of its reasonable discretion subsidiaries for any period for which the holders of Company Membership Units immediately prior to the Effective Time (including the Members) are not obligated to indemnify Buyer, the Company and Seller Representative conducts the defense of the claim actively and diligentlyits subsidiaries, and (Div) if the applicable Tax Indemnified Taxpayer Party is requested by the Members' Representative to pay the Tax claimed and sue xxx for a refund, and or if so requested by Bxxxxthe Indemnified Tax Claim is otherwise paid, Sellers the holders of Company Membership Units immediately prior to the Effective Time (including the Members) shall have advanced to such the Tax Indemnified TaxpayerParty, on an interest interest-free basis, the full amount of such claim, (v) such claim involves only money damages and does not seek an injunction or other equitable relief, and (vi) settlement of, or an adverse judgment with respect to, such claim would not, in the good faith judgment of the Tax Indemnified Taxpayer is requested Party, likely establish a precedential custom or practice adverse to paythe continuing business interests of the Tax Indemnified Party. If In the event any of the above conditions in clauses is or becomes unsatisfied (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Tax Indemnified Taxpayer Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim such Indemnified Tax Claim in any manner it may deem appropriate (and neither Buyer nor any the Tax Indemnified Taxpayer Party need not consult with, or obtain any consent from, Sellers or any Seller Representative in connection therewith), (yB) Sellers the holders of Company Membership Units immediately prior to the Effective Time (including the Members) will reimburse Buyer and the Tax Indemnified Taxpayer Party promptly and periodically for the costs of defending against the claim such Indemnified Tax Claim (including reasonable attorneys’, accountants’ and experts’ ' fees and disbursements) expenses), and (zC) Sellers the holders of Company Membership Units immediately prior to the Effective Time (including the Members) will remain responsible for any Damages Buyer or any other Tax Losses the Tax Indemnified Taxpayer Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Indemnified Tax Claim to the fullest extent provided in this Section 7.2.
(iii) Seller Representative 10.09. The Tax Indemnified Party shall not make any payment of an Indemnified Tax Claim for at least 30 days (or such shorter period as may be entitled to settle or to contest any claim relating to Taxes without required by applicable law) after the consent giving of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment notice required by Section 10.09(b) of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxesclaim, and, if required by applicable Legal Requirements, Buyer willshall give to the Members' Representative any information requested related to such claim, and will cause its Affiliates to, join otherwise shall cooperate with the Members' Representative in the execution of order to contest effectively any such Tax Returns and other documentationclaim.
Appears in 1 contract
Samples: Merger Agreement (Us Unwired Inc)
Indemnification for Taxes. (a) Seller Parties shallFrom and after the Closing Date, jointly and severallyPiccadilly shall protect, defend, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, the Buyer and Bayou from any and all Damages directly resulting from:
Taxes (including any obligation to contribute to the payment of any Taxes determined on a consolidated, combined or unitary basis with respect to a Sellers' Group of corporations that includes or included Bayou) which are (i) imposed on Piccadilly or any Taxes member (other than Bayou) of the Company allocable to consolidated, unitary or combined Sellers' Group which includes or included Bayou or (ii) imposed on Bayou in respect of its income, business, property or operations or for which Bayou may otherwise be liable (A) for any taxable period ending on or prior to before the Closing Date or, as provided (except for those periods described in Section 7.3(b9.3) and for any Pre-Closing Period (as defined and determined in Section 9.4), allocable provided however that to the preextent that a liability for such Taxes has been accrued and included in the Closing Date Working Capital Statement, then Piccadilly shall have no obligation to make such Tax payment, (B) resulting by reason of the several liability of Bayou pursuant to Treasury Regulations section 1.1502-Closing portion 6 or any analogous state, local or foreign law or regulation or by reason of Bayou having been a member of any period that begins on consolidated, combined or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect unitary Sellers' Group on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) resulting from Bayou ceasing to be a member of the affiliated Sellers' Group (within the meaning Section 1504(a) of the Code) that includes Piccadilly. Any indemnification of Buyer for any Taxes hereunder shall be reduced by reason any tax benefit resulting to Buyer or Bayou from the adjustment resulting in the indemnification. Furthermore, if Piccadilly is required to pay additional Taxes for a Pre-Closing Period, and such payment provides a tax benefit to Buyer or Bayou for a Post-Closing Period, than Buyer shall indemnify Piccadilly to the extent of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnssuch tax benefit.
(ib) If a written claim In the case of any audit, examination or other proceeding ("Proceeding") with respect to Taxes for which Piccadilly is made or may be liable pursuant to this Agreement, the Buyer shall promptly inform Piccadilly, and shall afford Piccadilly, at Piccadilly's expense, the opportunity to control the conduct of such Proceedings. The Buyer shall execute or cause to be executed powers of attorney or other documents necessary to enable Piccadilly to take all actions desired by Piccadilly with respect to such Proceeding to the extent such Proceeding may affect the amount of Taxes for which Piccadilly is liable pursuant to this Agreement. Piccadilly shall have the right to control any Tax Authority thatsuch Proceedings, and, if successfulthere is substantial authority therefor, would to initiate any claim for refund, file any amended Return or take any other action which it deems appropriate with respect to such Taxes. Notwithstanding the foregoing, Piccadilly shall not agree to any settlement concerning Taxes for any taxable period ending on or before the Closing Date which may result in a material increase in Taxes for any taxable period ending after the indemnification Closing Date without the prior written consent of an Indemnified Taxpayerthe Buyer. By written notice to Piccadilly, the Indemnified Taxpayer Buyer shall promptly notify Seller Representative in writing have the right to instruct Piccadilly to forego Proceedings with respect to one or more items for which Piccadilly may be liable to indemnify the Buyer. Such notice shall constitute a waiver of the right of the Buyer to indemnification for any Taxes arising out of such fact; provided that any failure to give such notice will item for the period or periods involved, but shall not otherwise waive any rights of the Indemnified Taxpayer except Buyer under this Section. Buyer shall not agree to extend the extent the rights statute of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible limitations for any Damages taxable period of Bayou before or which includes the Closing Date without the prior consent of Piccadilly. Any indemnification of Buyer for any Taxes hereunder shall be reduced by any tax benefit resulting to Buyer or any other Indemnified Taxpayer may suffer to Bayou from the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, adjustment resulting in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayerindemnification.
(c) Notwithstanding anything If the Buyer receives, or is entitled to receive, any refund of Taxes (either by actual receipt or by application against future Taxes of Bayou), then the Buyer shall pay to Piccadilly the portion of such refund that (i) relates to the Pre-Closing Period of any taxable period that begins before and ends after the Closing Date (as defined and determined pursuant to Section 9.4) or (ii) relates to any taxable period that ends prior to or on the Closing Date. Any payment described in this Agreement Section 9.6(c) shall be made by the Buyer to the contrary, the indemnification obligations Piccadilly within thirty (30) days of the Seller Parties under this Article VI shall survive date on which the Closing until sixty (60) days following Buyer receives the end refund of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityTaxes.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Piccadilly Cafeterias Inc)
Indemnification for Taxes. (a) The Seller shall indemnify, defend and hold harmless the Acquiror Indemnified Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”defined in Section 10.01(a), ) against, and protectreimburse any Acquiror Indemnified Party for, save and hold harmless each all Losses that such Acquiror Indemnified Taxpayer fromParty may at any time suffer or incur, any and or become subject to, as a result of or in connection with all Damages directly resulting from:
Taxes (i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company or any Insurance Subsidiary, or for which the Company or any Insurance Subsidiary may otherwise be liable, (x) for any Pre-Closing Taxable Period or Buyer (y) for any Straddle Period, but only to the extent of Taxes allocated to the Seller in accordance with Section 7.01(c) hereof, (ii) imposed on the Company or any Insurance Subsidiary, or for which the Company or any Insurance Subsidiary may otherwise be liable, as a result of having been a member of a Company Group (including, without limitation, Taxes for which the Company being a disregarded entity postor any Insurance Subsidiary may be liable pursuant to Treas. Reg. § 1.1502-Closing) (A) 6 or similar provisions of Law as a result of having been a member of a Company Group and any written Taxes resulting from the Company or any Insurance Subsidiary ceasing to be a member of any Company group), (iii) that are imposed as a result of or in connection with the transactions contemplated by Section 5.13 or (iv) that are imposed as a result of or in connection with the inaccuracy or breach of any representation or warranty made by the Seller in Xxxxxxx 0.00 (x), (x), (x), (x) or (h); provided, however, that Seller shall not be required to so indemnify, defend or hold harmless any Acquiror Indemnified Party against any such Loss resulting from or in connection with (I) any Tax sharing to the extent of the amount of such Tax, if any, taken into account as a liability in computing Final Statutory Surplus or Tax allocation agreement in effect on or paid prior to the Closing Date; (II) any Tax imposed on the Company or any Insurance Subsidiary, (B) or for which the Company or any Insurance Subsidiary may otherwise be liable, as a transferee or successorresult of transactions that are neither in the ordinary course of business nor contemplated by this Agreement, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate that the Acquiror causes to an event or transaction occurring occur after the Closing on or prior to the Closing Date, and that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. 1.1502-76) to the portion of the Closing Date after the Closing (any Tax described in Clauses I and II of this proviso, an “Excluded Tax”) or (III) any Tax to the extent of any recovery thereof by any Acquiror Indemnified Party from a third person and, in the case of any such recovery after receipt of an indemnity payment hereunder, the Acquired Indemnified Party shall promptly pay over such recovered amounts to the Seller to the extent the recovery is in duplication of such indemnity payment. The parties understand and agree that no disclosure in the Disclosure Schedule shall serve to diminish the Seller’s indemnification obligation under this Section 7.02(a) other than under clause (iv) of this Section 7.02(a). Nothing in this Section 7.02(a) shall be interpreted as relieving the Acquiror of any obligation it might have under Section 7.02(b) or Section 7.02(c)(i).
(b) The Acquiror shall indemnify, defend and hold harmless the Seller Indemnified Parties (as defined in Section 10.02(a)) against, and reimburse any Seller Indemnified Party for, all Losses that such Seller Indemnified Party may at any time suffer or incur, or become subject to, as a result of or in connection with all Taxes (Ci) by reason imposed on the Company or any Insurance Subsidiary, or for which the Company or any Insurance Subsidiary may otherwise be liable, (x) for any Post-Closing Taxable Period, (y) any Straddle Period, but only with respect to Taxes allocated to the Acquiror in accordance with Section 7.01(c) hereof and (ii) that are Excluded Taxes. Nothing in this Section 7.02(b) shall be interpreted as relieving the Seller of being any obligation it might have under Section 7.02(a) or Section 7.02(c)(ii).
(i) If, as a member, partner or similar owner direct result of an equity interest in action, suit, investigation, audit, claim, assessment, settlement or amended Tax Return of or for any Pre-Closing Taxable Period (or the portion of any Straddle Period ending on and including the Closing Date) of or including the Company or any Insurance Subsidiary, an adjustment makes allowable to the Company or any Insurance Subsidiary, a partnershipcorrelative deduction, limited liability company amortization, exclusion from income or other entity classified allowance which produces an actually realized reduction in such Person’s Tax liability (such reduction, a “Tax Benefit”) which would not, but for such adjustment, be allowable, then the Acquiror shall pay to the Seller the amount of such Tax Benefit when it is actually realized by such Person, but not in excess of the sum of (x) amount paid or payable by the Seller in respect of such adjustment and (y) any amount that the Seller would have been required to pay in respect of such adjustment but for the application of clauses (I) or (III) of Section 7.02(a).
(ii) If, as a partnership direct result of an action, suit, investigation, audit, claim, assessment, settlement or amended Tax Return of or for any Pre-Closing Taxable Period (or the portion of any Straddle Period ending on and including the Closing Date) of or including the Company or any Insurance Subsidiary, an adjustment causes the Company or any Insurance Subsidiary to suffer a correlative inclusion in income or disallowance or reduction in any deduction, amortization or other allowance which produces an actually realized increase in such Person’s Tax liability (such increase, a “Tax Detriment”) which would not, but for such adjustment, occur, then Seller shall reimburse the Acquiror for the amount of such Tax Detriment when it is actually suffered by such Person.
(d) The Seller and the Acquiror agree that no net operating loss or net capital loss carryovers of the Company or any Insurance Subsidiary shall be reattributed pursuant to Treasury Regulation Section 301.7701Treas. Reg. § 1.1502-3 20(g) or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax ReturnsLaw.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ge Financial Assurances Holdings Inc)
Indemnification for Taxes. (a) Seller Parties shallNotwithstanding any provision to the contrary contained in this Agreement, jointly and severallywithout duplicating any obligation under any other provision of this Article 9, indemnify Buyer until the expiration of the applicable statute of limitations and its Affiliates, including, after subject to the Closinglimitation set forth in Section 9.6, the Company (each herein sometimes referred Preferred Stockholders and COC Recipients agree to as an “Indemnified Taxpayer”)indemnify, against, and protect, save defend and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
the Parent Indemnitees on an after-tax basis against (i) all Taxes, losses, claims and expenses resulting from, arising out of, or incurred with respect to, any claims that may be asserted by any party based upon, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 3.12 (Taxes) of this Agreement to be true and correct as of the Closing Date; (ii) all Taxes imposed on or asserted against the properties, income or operations of the Company allocable or its Subsidiaries, or for which the Company or any of its Subsidiaries may otherwise be liable, for all Pre-Closing Periods to the extent such Taxes are not reflected in the Closing Date Working Capital, are not attributable to compensation payable by reason of the actions described in Section 5.11, are not attributable to any period ending amendment to any Return filed, or other change made, by Parent or the Surviving Corporation following the Closing Date, or are not taken into account in determining the Adjustment Amount; (iii) all Taxes of any member of an affiliated, consolidated, combined or unitary group (“Group”) of which Company or any of its Subsidiaries (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer any of its Subsidiaries as a result of the Company being a disregarded entity postprovisions of Treasury Regulations Section 1.1502-Closing) (A) as a result 6 or the analogous provisions of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnslaw.
(ib) If In the case of any taxable period that includes but does not end on the Closing Date (a written claim “Straddle Period”), the amount of any Taxes based on or measured by income or receipts of the Company and its Subsidiaries for the Pre-Closing Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes of the Company and its Subsidiaries that relate to the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is made by any Tax Authority that, if successful, would result the number of days in the indemnification taxable period ending on the Closing Date and the denominator of an Indemnified Taxpayer, which is the Indemnified Taxpayer shall promptly notify Seller Representative in writing number of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense days in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerStraddle Period.
(c) Notwithstanding anything in this Agreement Parent shall prepare or cause to be prepared and file or cause to be filed all Returns for the Company and its Subsidiaries that are filed after the Closing Date. Any such Returns that include periods beginning prior to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer Date shall be treated as having provided timely notice prepared, to such Seller Party the extent permitted by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellersapplicable law, on the one handsame basis as the last previous such Returns or on as near to the same basis as possible, unless there is no reasonable basis for such position. Parent shall permit Representative (or an advisor appointed by Representative) to review and Buyer, comment on the other hand, each such Return prior to filing and shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other make such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax revisions to such Returns and other documentation with respect to all such Transfer Taxes, and, if required as are reasonably requested by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationRepresentative.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly The Stockholders hereby severally agree to indemnify and severally, indemnify Buyer hold Purchaser and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, Affiliates harmless from and protect, save and hold harmless each Indemnified Taxpayer from, against any and all Damages directly resulting from:
liability for Taxes imposed upon or assessed against the Company or any of its Subsidiaries or the assets thereof (i) any Taxes of the Company allocable to any period for all Tax periods ending on or prior to before the Closing Date or, as provided in Section 7.3(b), allocable to and the pre-portion ending on the Closing portion Date of any Tax period that begins on or before and ends after includes (but does not end on) the Closing Date;
Date (the "PRE-CLOSING TAX PERIOD"); (ii) by reason of being a successor-in-interest or transferee of another entity; (iii) with respect to any and all Taxes of any other Person imposed on the Company (or Buyer as a result member of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect an Affiliated Group on or prior to the Closing Date, by reason of the liability of the Company pursuant to Treasury Regulation Section 1.1502-6(a) or any analogous or similar state, local or foreign law or regulation; and (Biv) as all liability for reasonable legal fees and expenses for any item attributable to any item in clauses (i) through (iii) above. Notwithstanding the foregoing, the Stockholders shall not indemnify and hold Purchaser harmless from any liability for Taxes (i) attributable to any action taken after the Closing by Purchaser, any of its Affiliates (including the Company and any of its Subsidiaries) or any transferee of Purchaser or any of its Affiliates (other than any such action expressly required by applicable law, by this Agreement or required in connection with any audit or Tax proceeding) (a transferee "PURCHASER TAX ACT") or successor(ii) which have been reserved for by the Company or any of its Subsidiaries prior to the Closing Date if such reserves have caused the Consideration to be reduced pursuant to SECTION 3.2 hereof.
(b) Purchaser shall, and shall cause the Company and each of its Subsidiaries to, indemnify and hold harmless the Stockholders from (i) all liability for Taxes of the Company and its Subsidiaries for any Tax period ending after the Closing Date (except to the extent such Tax period began before the Closing Date, in which case Purchaser's indemnity will apply only to that portion of any such Taxes that are not for the Pre-Closing Tax Period), (ii) all liability for Taxes attributable to a breach by Purchaser of its obligations under this Agreement or otherwise under applicable Legal Requirements a Purchaser Tax Act, and (which Taxes described iii) all liability for reasonable legal fees and expenses attributable to any item in this clause (Bi) relate to an event or transaction occurring (ii) above.
(c) In the case of any Taxes of the Company or any of its Subsidiaries that are payable for a Tax period that includes (but does not end on) the Closing Date (a "STRADDLE PERIOD"), the portion of such Taxes for the Pre-Closing Tax Period shall equal:
(i) in the case of real, personal and intangible property Taxes ("PROPERTY TAXES") of the Company and its Subsidiaries, the amount of such Taxes for the Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period on or prior to the Closing Date), or (C) by reason Date and the denominator of being a member, partner or similar owner which is the number of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result days in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such factentire Straddle Period; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.and
(ii) Seller Representative shall have in the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel case of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed Taxes of the status Company and progress of such claim and related proceedingsits Subsidiaries other than Property Taxes, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) amount which would be payable if the applicable Indemnified Taxpayer is requested to pay the relevant Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, period ended on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityDate.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) The Seller Parties shallshall be liable for and shall indemnify, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save defend and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
the Purchaser on an after-tax basis against (i) any all Pre-Closing Taxes of the Company allocable to any period ending on or prior to and members of the Closing Date orCompany Group, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any all Income Taxes of any other Person incurred by or imposed on the Company (or Buyer the Company Group solely as a result of the Company being a disregarded entity postprovisions of Treasury Regulations Section 1.1502-Closing) (A) as a result 6 or the similar or analogous provisions of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;law with respect to any period during which the Seller and the Company filed a Combined Tax Return.
(b) The Purchaser shall be liable for and shall indemnify, defend and hold harmless the Seller and members of the Pitney Bowes Group on an after-tax basis against, (i) all Transfer Taxes xxxxing from the sale of the Shares under Section 2.01(a) hereof or the deemed sale of assets under Section 338(h)(10) of the Code, (ii) all Post-Closing Taxes that are incurred by or imposed on the Company Group and (iii) any Taxes resulting from the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of Purchaser or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights Affiliate of the Indemnified Taxpayer except to the extent the rights Purchaser making an election under Section 338(g) of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim Code other than a deemed election under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewithTreasury Regulations Section 1.338(h)(10)-1(c)(4), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything The Purchaser shall have no right to indemnification from the Seller for any Losses incurred by the Purchaser in this Agreement to connection with any restructuring involving PBG Holdings Inc. ("PBG HOLDINGS") or its direct or indirect shareholders that results in PBG Holdings becoming a member for the contraryPitney Bowes Consolidated Group (the "PBG RESTRUCTURING") or as a result xx x Section 338 election for PBG Holdings not being effective. The Purchaser shall be liable for and shall indemnify, defend and hold harmless the indemnification obligations Seller and members of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation Pitney Bowes Group for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees liability (including any penalties costs and interest) incurred expensxx xxcurred by the Seller in connection with defending any third party claims) resulting from (i) the PBG Restructuring, or (ii) the sale of PBG Holdings failing to be eligible for an election under Section 338(h)(10) of the Code; PROVIDED, that the maximum aggregate liability of the Purchaser pursuant to this Agreement Section 9.07(c) shall be Seven Million Five Hundred Thousand Dollars (“Transfer Taxes”$7,500,000.00), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any the Buyer Indemnitees from and all Damages directly resulting from:
against: (i) any Taxes for all Pre-Closing Tax Periods of the Company allocable Transferred Companies and the Selling Companies (in the case of the Selling Companies, to the extent Related to the Business), (ii) Taxes for all Tax periods of the Selling Companies, (iii) Taxes for all Pre-Closing Tax Periods of any period ending Affiliated Group to which any of the Transferred Companies was a member on or prior to the Closing, (iv) Taxes for all Tax periods relating to Excluded Assets or Excluded Liabilities, (v) Taxes for all Pre-Closing Date or, as provided in Section 7.3(b), allocable Tax Periods relating to the pre-Closing portion respective businesses or operations of any period that begins on the Selling Companies, to the extent Related to the Business, or before to the ownership or use of the Transferred Assets or the Assumed Liabilities, and ends after the Closing Date;
(iivi) any Taxes of any other Person imposed on any the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) Transferred Companies as a transferee or successor, by contract (other than a contract entered into the in the Ordinary Course, the primary subject matter of which is not Taxes) or otherwise under applicable Legal Requirements (pursuant to any Law, which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to before the Closing Date(collectively, the “Indemnified Taxes”).
(b) Buyer shall indemnify and hold harmless the Seller Indemnitees from and against (i) Taxes of the Transferred Companies for all Post-Closing Tax Periods, or (Cii) by reason of being a memberAssumed Tax Liabilities, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion Taxes arising out of any action taken, or out of any failure to take any action, outside the ordinary course of business by Buyer or any of its Affiliates after the Closing, (iv) VAT payable by Buyer and its Affiliates under Section 10.3 and (v) Transfer Taxes payable by Buyer and its Affiliates under Section 10.4. For avoidance of doubt, Buyer shall in no event be required to indemnify and hold harmless the Seller Indemnitees from and against any Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerTaxes.
(c) Notwithstanding anything in Subject to Section 10.8(g), any indemnity payment for Taxes to be made pursuant to this Agreement Section 10.1 shall be paid within thirty (30) Business Days after any Buyer Indemnitee claiming it is entitled to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive X (the Closing until sixty “Indemnified Tax Party”) makes written demand upon the other Party, but in no case earlier than five (605) days following Business Days prior to the end date on which the relevant Taxes (including, for the avoidance of doubt, any estimated Tax payments or Tax deposits) are required to be paid to the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax relevant Governmental Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Huntsman International LLC)
Indemnification for Taxes. (a) The Company and Seller Parties shallindividually as Guarantor jointly and severally hereby agrees to indemnify, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys', accountants' and experts' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (a) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date, and (b) any Taxes of the Company or any corporation that is or was a member of an Affiliated Group of which the Company was or is a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company's capital stock pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d7.02(c); or
(iv) , upon notice from Buyer to Seller that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 7.02(a), Seller shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend the Indemnified Taxpayer against any such claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s its choice satisfactory to the Indemnified Taxpayer so long as (Aa) Buyer is kept reasonably informed of Seller notifies the status and progress Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given notice of such claim that Seller will indemnify the Indemnified Taxpayer from and related proceedingsagainst the entirety of any Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (Bb) Buyer and Bxxxx’s counsel are allowed Seller provides the Indemnified Taxpayer with evidence acceptable to participate at Bxxxx’s expense in such the Indemnified Taxpayer that Seller will have the financial resources to defend against the claim and related proceedingsfulfill his indemnification obligations hereunder, (Cc) if requested by the Indemnified Taxpayer, Seller Representative’s provides to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel with respect satisfactory to such claim is approved by Buyer the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlythat contest, and (Dd) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers Seller shall have advanced to such the Indemnified TaxpayerTaxpxxxr, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (e) Seller conducts the defense of the claim actively and diligently.
(iii) Subject to the provisions of paragraph (ii) above, Seller shall be entitled to prosecute such contest to a determination in a court of initial jurisdiction, and if Seller shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, Seller shall provide to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(iv) Seller shall not be entitled to settle or to contest any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the good faith judgment of the Indemnified Taxpayer, to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by Seller pursuant to paragraph (ii)(d) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to Seller any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayers with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before such time as Seller shall have made all payments or indemnities then due with respect to Indemnified Taxpayer pursuant to this Article VIII.
(vi) If any of the conditions in clauses (A) through (DSection 7.02(c)(ii) above is are or becomes become unsatisfied, then (xa) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (yb) Sellers Seller will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’', accountants’ ' and experts’ ' fees and disbursements) and (zc) Sellers Seller will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.27.02.
(iiid) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s 's receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(de) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by Seller when due, and Seller Representative will will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxestransfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal Requirementslaw , Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Stock Purchase Agreement (Xstream Beverage Group Inc)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, AIC shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from any and all Damages directly resulting fromIndemnifiable Losses to the extent arising out of the following:
(i) (A) any and all Taxes of or with respect to the Companies for all Pre-Closing Tax Periods, including, for the avoidance of doubt, any Taxes for a Pre-Closing Tax Period deferred pursuant to the CARES Act or the Payroll Tax Executive Order and (B) any and all Taxes arising from or attributable to the Pre-Sale Transactions, except, in either case, to the extent of any accrued Liability for Taxes taken into account in the calculation of the Company allocable to Final Adjustment Amount;
(ii) Liability for Taxes of any period ending member of the Seller Group or any other Affiliated Group of which the Companies (or any predecessor thereof) is or was a member on or prior to the Closing Date or(other than the Companies) pursuant to Treasury Regulations Section 1.1502-6 and any corresponding provision of state, as provided in Section 7.3(b)local, allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;foreign law; and
(iiiii) any and all Taxes of any Person (other Person than the Companies) imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) Companies as a transferee or successor, by contract (other than a commercial contract entered into in the ordinary course of business the primary purpose of which is not related to Tax) or otherwise under applicable Legal Requirements (pursuant to any Applicable Law, which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to before the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;Closing.
(iiib) For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the portion of any Transfer Taxes that are Pre-Closing Tax Period and the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement Post-Closing Tax Period in this Agreement relating to Taxes or Tax Returns.the following manner:
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification case of Taxes based on or measured by income, gain, or receipts, or related to the actual or deemed sale or transfer of property, or which are withholding Taxes, such Taxes shall be allocated based on an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights interim closing of the Indemnified Taxpayer except to the extent the rights books as of the indemnifying party are actually materially prejudiced.Closing Date; and
(ii) Seller Representative shall have in the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel case of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for Taxes calculated on a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free periodic basis, the full portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Indemnified Taxpayer Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is requested to pay. If any the number of days in the portion of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer Straddle Period ending on the Closing Date and the applicable Indemnified Taxpayer may defend against, and consent to denominator of which is the entry number of days in the entire Straddle Period. Notwithstanding any judgment or enter into any settlement with respect toother provision of this Agreement, the claim in any manner it may deem appropriate (and neither Buyer nor any Seller Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative Persons shall not be entitled liable for (and Buyer shall indemnify the Seller Indemnified Persons against) any Taxes resulting from any transaction or event that is outside the ordinary course of business and occurs after the Closing but on the Closing Date, other than Taxes attributable to settle a transaction or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of event initiated by the Seller Parties under this Article VI shall survive or the Companies before the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party or contemplated by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritythis Agreement.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallSubject to the terms and conditions of Section 10.4, jointly from and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, Closing Date Enron shall be liable for and protect, save shall indemnify and hold harmless each Indemnified Taxpayer fromEOG and its Subsidiaries (collectively, any the "EOG Tax Indemnitees")from and all Damages directly resulting fromagainst the following:
(i) any Any Taxes of an Acquired Company or of any member of the Company allocable Enron Group (other than EOG or any member of the EOG Group (other than an Acquired Company) which was also a member of the Enron Group) for any taxable period, except to the extent provided in Section 10.3(b);
(ii) Any Taxes imposed on EOG or EOG International with respect to the Share Exchange to the extent resulting from a breach by Enron of any period ending representation or warranty made pursuant to Section 3.10 of this Agreement or covenant made pursuant to Section 6.2 of this Agreement;
(iii) Any Taxes imposed on EOG or prior EOG International with respect to the Share Exchange to the extent resulting from any of the following events: (1) within two years following the Closing Date orthe percentage ownership by Enron or any Acquired Company of the stock of an Acquired Company is decreased to less than 80% of its ownership percentage of such stock immediately after the Share Exchange, as (2) within two years following the Closing Date any Acquired Company redeems or otherwise acquires more than 20 percent of its stock outstanding immediately after the Share Exchange, (3) within two years following the Closing Date any Acquired Company disposes of any of its assets other than in the ordinary course of business, or (4) within two years following the Closing Date Enron sells the Retained Shares to one Person (or a group of Persons composed of one Person and other Persons related to such Person within the meaning of section 267(b) or 707(b)(1) of the Code); and
(iv) Any withholding Tax imposed by India with respect to interest paid or accrued by EOG India Cayco.
(b) Subject to the terms and conditions of Section 10.4, from and after the Closing Date EOG shall be liable for and shall indemnify and hold harmless Enron, EOG India HoldCo and their respective Subsidiaries (collectively, the "Enron Tax Indemnitees") from and against the following:
(i) Any Taxes of any member of the EOG Group (whether pursuant to Treas. Reg. Sections. 1.1502-6 or otherwise) other than any Acquired Company for any taxable period except to the extent provided in Section 7.3(b10.3(a), allocable ;
(ii) Any Taxes imposed with respect to any Subpart F income (within the meaning of section 952 of the Code) of any of the Acquired Companies attributable (using an interim closing of the books approach) to the pre-Closing portion of any period that begins on or before and ends after January 1, 1999 through the Closing Date;
(iiiii) any Any Taxes imposed on Enron with respect to the Share Exchange to the extent resulting from a breach by EOG of any other Person imposed on the Company (representation or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers warranty made pursuant to Section 7.2(d); or4.9 of this Agreement;
(iv) Any Taxes imposed on Enron with respect to the Share Exchange if continuity of interest in EOG within the meaning of Treas. Reg. Sections. 1.355-2(c) is not maintained with respect to the Share Exchange unless the absence of such continuity of interest was not a contributing cause with respect to the imposition on Enron of any breach such Taxes; provided, however, that if EOG asserts that continuity of or failure interest was maintained with respect to perform the Share Exchange and/or that any representationabsence of continuity of interest was not a contributing cause with respect to the imposition of any such Taxes, warranty, covenant or agreement in this Agreement relating EOG shall bear the burden of proof and be required to Taxes or Tax Returns.prove such matters by clear and convincing evidence; and
(iv) If a written claim is made Any Texas franchise Taxes (measured by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except contributions described in Section 2.1 of this Agreement) imposed on EOG India HoldCo to the extent the rights resulting from a breach of the indemnifying party are actually materially prejudicedrepresentation contained in Section 4.9(j) of this Agreement.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly From and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
, the Seller shall be liable for and shall indemnify the Buyer Group Members and hold them harmless from and against any Losses attributable to: (i) all Taxes (or the nonpayment thereof) of each Company (not including RDA) for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes, but does not end on, the Closing Date (each such taxable period shall be referred to as a “Pre-Closing Tax Period”); (ii) any all Taxes of any other Person imposed on the member of an affiliated, consolidated, combined or unitary group of which any Company (not including RDA) is or Buyer as was a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect member on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership including pursuant to Treasury Regulation Regulations Section 301.77011.1502-3 6 or any similar provision of state, local or foreign Legal Requirements;
law; and (iii) the portion any Taxes of any Transfer Person (other than the Companies) Liability for which is imposed on the Companies (not including RDA) as a transferee or successor, by contract or otherwise, pursuant to a transaction or contract or other indemnification obligation that occurs or arises before the Closing; provided, however, that in the case of clauses (i), (ii) and (iii) above, (x) the Seller shall be liable only to the extent that such Taxes exceed the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) on the Final Closing Date Statement; and (y) notwithstanding anything to the contrary in this Agreement, the Seller shall not be liable for or indemnify the Buyer Group Members against any Losses attributable to Taxes that are the responsibility of Sellers the Buyer pursuant to Section 7.2(d); or
(iv6.12(k) hereof and any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnsthat constitute an Assumed Liability.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from and against any and all Damages directly Indemnifiable Losses to the extent resulting fromfrom or arising out of the following:
(i) Taxes imposed on any Taxes Acquired Company, or for which any Acquired Company may otherwise be liable, as a result of the Company allocable to any period ending on having been a member of a consolidated, combined, unitary or affiliated group prior to the Closing (including Taxes for which any Acquired Company may be liable pursuant to Treasury Regulations § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of such a group);
(ii) Taxes with respect to any Acquired Company, the Business or any Allocated Asset for all Pre-Closing Tax Periods, together with (and without duplication of) any interest, penalty or additions to Tax accruing after the Closing Date oron Taxes described in this clause (ii);
(iii) Taxes imposed by reason of any Acquired Company having liability for Taxes of another Person arising under principles of transferee or successor liability or by contract (other than any contract entered into in the ordinary course of business, as provided in Section 7.3(bor commercial lending or financing arrangements), allocable in each case as a result of activities or transactions taking place prior to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(iiiv) any Taxes of any other Person imposed on the Company each “old target” (as defined in Treasury Regulations Section 1.336-1(b)(3) or Buyer as a result similar provision of state or local Law) and of the Company being affiliated group of which such “old target” was a disregarded entity postmember, in each case to the extent such Taxes are attributable to the Section 336(e) Elections;
(v) Taxes attributable to any increase in the transition amount under section 13517(c)(3) of the tax Cuts and Jobs Act, P.L. No. 115-Closing) (A) 97 as a result of any written Tax sharing adjustment to such amount after the date hereof;
(vi) Taxes attributable to the Pre-Sale Transactions; and
(vii) Taxes arising out of a breach of or Tax allocation agreement inaccuracy in effect on any representation or warranty described in Section 3.10(g), Section 3.10(h), Section 3.10(j) and Section 3.10(k), or breach of any covenant of Seller or its Affiliates (including the Acquired Companies, prior to the Closing Date) under Article V or this Article VIII; provided, (B) as a transferee or successorhowever, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior Seller shall not be liable for any Tax liability to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited extent such Tax liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;is taken into account on the Final Settlement Statements.
(iiib) Buyer agrees to indemnify and hold harmless the portion of Seller Indemnified Persons from and against any Transfer and all liabilities for Taxes that are the responsibility of Sellers not subject to indemnification by Seller pursuant to Section 7.2(d); or
(iv8.1(a) any breach of to the extent resulting from or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.arising out of:
(i) If a written claim is made Taxes imposed on any Acquired Company for all Post-Closing Tax Periods, except Taxes indemnifiable by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such factpursuant to Section 8.1(a); provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.and
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel Taxes arising out of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry breach of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither covenant of Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in under this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerArticle VIII.
(c) Notwithstanding anything For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in this Agreement to the contraryfollowing manner:
(i) in the case of Taxes other than real or personal property Taxes, the indemnification obligations such Taxes shall be allocated based on an interim closing of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following books as of the end of the applicable statutes Closing Date; and
(ii) in the case of limitationsreal or personal property Taxes calculated on a periodic basis, the portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period. With respect to Notwithstanding any indemnification obligation other provision of this Agreement, the Seller Indemnified Persons shall not be liable for (and Buyer shall indemnify the Seller Indemnified Persons against) any Tax for which a Tax Authority asserts a claim within ninety (90) days Taxes resulting from any transaction or event that is outside the ordinary course of business and occurs after the Closing but on the Closing Date, unless such transaction or event is initiated by Seller or any Acquired Company before the end Closing or occurs pursuant to the terms of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritythis Agreement.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Master Transaction Agreement (Voya Financial, Inc.)
Indemnification for Taxes. (a) Seller Parties shallshall be responsible for, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Income Taxes of imposed on the Company allocable Subsidiaries and the Partnership, and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys' fees, and expenses arising therefrom, relating to any period (A) taxable periods or portions thereof ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee Income Taxes resulting from the ss.sx. 008(g) and 338(h)(10) elections (or successorany comparable elections under foreign, state or otherwise under applicable Legal Requirements (which Taxes described in this clause (Blocal tax law) relate to an event or transaction occurring on or prior to the Closing Date)contemplated by Section 16.2, or (C) by reason Income Taxes resulting from the application of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701Treas. Reg. ss. 1.1502-3 6 or any similar provision of comparable state, local or foreign Legal Requirements;
tax law attributable to Tesoro Parent, or any corporation or entity which is or has been affiliated with or been part of a combined, unitary or affiliated group with Tesoro Parent, and (iiiD) the portion of the Income Taxes for any Transfer Straddle Period (as defined in subsection 16.1(e)) allocable to Sellers with respect to any of the Subsidiaries or the Partnership under subsection 16.2(f) and (ii) all Other Taxes that are imposed on the responsibility of Sellers pursuant Subsidiaries and the Partnership relating to the taxable periods or portions thereof ending on or before the Effective Date (allocated as described in Section 7.2(d13.3); or
(iv) provided, Sellers shall not be responsible for, and shall not be required to indemnify Buyer against, any breach of or failure Taxes to perform any representation, warranty, covenant or agreement the extent that such Taxes do not exceed the accrued liability for Taxes on the Balance Sheets which are taken into account in this Agreement relating to Taxes or Tax Returnsdetermining the Working Capital.
(b) Buyer shall be responsible for and shall indemnify Sellers against all (i) If a written claim is made by Income Taxes imposed upon the Subsidiaries and the Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive, or other), reasonable attorneys' fees and expenses arising therefrom, relating to (A) taxable periods beginning after the Closing Date or (B) the portion of the Income Taxes for any Tax Authority thatStraddle Period which are allocable to Buyer under subsection 16.2(f), if successfuland (ii) except as provided in Section 13.3 and in this Article XVI, would result all Other Taxes imposed upon the Subsidiaries and the Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys fees and expenses arising therefrom arising in or relating to taxable periods or portions thereof beginning after the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer Effective Date (allocated as described in Section 13.3).
(c) Each Party shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights the other Party of the Indemnified Taxpayer except commencement of any demand, claim, audit, examination, Action or other proposed change or adjustment by any Taxing Authority concerning any Tax which could give rise to a claim for indemnity pursuant to subsection 16.1(a) or subsection 16.1(b), as the extent case may be (each a "Tax Claim"). Such notice shall contain factual information describing the rights asserted Tax Claim in reasonable detail and shall include copies of the indemnifying party are actually materially prejudicedany notice or other document received from any Taxing Authority in respect of any such asserted Tax Claim.
(iid) Seller Representative Seller, at its own expense, shall have the sole right to represent the Subsidiaries' and the Partnership's interests in any Tax Claim for Taxes for which it is indemnifying Buyer against and to employ counsel of its choice. Buyer shall have the right to defend against participate in such Action at its own expense, but in the case of Income Taxes, only in the event that any claim under subsection (b)(iTax Claim for Income Taxes impacts a subsidiary for which no Section 338(h)(10) at Sellers’ expense and with counsel of election was filed. Seller Representative’s choice so long as (A) Buyer is kept shall not consent to any settlement that reasonably informed would be expected to have an adverse effect on the Income Taxes of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts Subsidiaries or the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim Partnership in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and period after the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes Closing Date without the consent of Buyer's consent, which consent shall not be unreasonably withheld. Buyer's consent shall in no way reduce any indemnification due to Buyer under subsection 16.1(a). If Seller elects to control the defense, conditioned compromise or delayedsettlement of any Tax Claim, ifSeller shall keep Buyer informed of the progress and disposition of such Tax Claim. Buyer shall handle any other Tax Claims of the Subsidiaries and the Partnership and Buyer shall be entitled to defend, compromise or settle such Tax Claims in the good faith judgment of Buyerits sole discretion without in any way reducing its rights to indemnification under subsection 16.1(a), the unless any such settlement ofwould give rise to a tax claim against Seller, or an adverse judgment with respect toand in such event such settlement shall be subject to Seller's consent, the claim would reasonably which shall not be expected to adversely affect any Indemnified Taxpayerunreasonably withheld.
(ce) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for taxable period of the Subsidiaries or the Partnership beginning before and ending after the Closing Date (a "Straddle Period"), Buyer shall control, and Seller, at its own expense, shall have the right to participate in, the defense and settlement of any Tax for which a Tax Authority asserts a claim within ninety (90) days before Claim and each Party shall cooperate with the end other Party and there shall be no settlement or closing or other agreement with respect thereto without the consent of the applicable statute other Party, which consent shall not be unreasonably withheld; provided, that if either Party shall refuse (the "Refusing Party") to consent to any settlement, closing or other agreement agreed to by the relevant Taxing Authority with respect to any such Tax Claim that the other party (the "Accepting Party") proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party's Liability with respect to the subject matter of limitations, an Indemnified Taxpayer the Proposed Settlement shall be treated as having provided timely notice limited to the amount that such Seller Party by providing written notice to Seller Representative on or before Liability would have been if the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one handProposed Settlement had been accepted, and Buyer, on (ii) the other hand, Refusing Party shall divide evenly the financial responsibility be responsible for all transfer, documentary, sales, use, stamp, registration Liabilities and other such Taxes and fees (including any penalties and interest) expenses incurred or imposed thereafter in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution contest of any such Tax Returns and other documentationClaim to the extent that the final settlement is more than the Proposed Settlement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tesoro Petroleum Corp /New/)
Indemnification for Taxes. (a) Seller Parties shallshall be responsible for, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Income Taxes of the Company allocable imposed on Reserves LLC or Reserves LLC's interest in Partnership, and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys' fees, and expenses arising therefrom, relating to any period (A) taxable periods or portions thereof ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Income Taxes described in this clause (B) relate to an event or transaction occurring on or prior to resulting from the Closing Date), or (C) by reason application of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701Treas. Reg. ss.
1. 1502-3 6 or any similar provision of comparable state, local or foreign Legal Requirements;
tax law attributable to Tesoro Parent, or any corporation or entity which is or has been affiliated with or been part of a combined, unitary or affiliated group with Tesoro Parent, and (iiiC) the portion of the Income Taxes for any Transfer Straddle Period (as defined in subsection 16.1(e)) allocable to Sellers with respect to either Reserves LLC or Reserves LLC's interest in the Partnership under subsection 16.2(e) and (ii) all Other Taxes that are imposed on Reserves LLC or Reserves LLC's interest in the responsibility of Sellers pursuant Partnership relating to the taxable periods or portions thereof ending on or before the Effective Time (allocated as described in Section 7.2(d13.3); or
(iv) provided, Sellers shall not be responsible for, and shall not be required to indemnify Buyer against, any breach of or failure Taxes to perform any representation, warranty, covenant or agreement the extent that such Taxes do not exceed the accrued liability for Taxes on the Balance Sheets which are taken into account in this Agreement relating to Taxes or Tax Returnsdetermining the Working Capital.
(b) Buyer shall be responsible for and shall indemnify Sellers against all (i) If a written claim is made by any Tax Authority that, if successful, would result Income Taxes imposed upon Reserves LLC or Reserves LLC's interest in the indemnification Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive, or other), reasonable attorneys' fees and expenses arising therefrom, relating to (A) taxable periods beginning after the Closing Date or (B) the portion of an Indemnified Taxpayerthe Income Taxes for any Straddle Period which are allocable to Buyer under subsection 16.2(e), and (ii) except as provided in Section 13.3 and in this Article XVI, all Other Taxes imposed upon Reserves LLC or Reserves LLC's interest in the Indemnified Taxpayer Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys fees and expenses arising therefrom arising in or relating to taxable periods or portions thereof beginning after the Effective Time (allocated as described in Section 13.3).
(c) Each Party shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights the other Party of the Indemnified Taxpayer except commencement of any demand, claim, audit, examination, Action or other proposed change or adjustment by any Taxing Authority concerning any Tax which could give rise to a claim for indemnity pursuant to subsection 16.1(a) or subsection 16.1(b), as the extent case may be (each a "Tax Claim"). Such notice shall contain factual information describing the rights asserted Tax Claim in reasonable detail and shall include copies of the indemnifying party are actually materially prejudicedany notice or other document received from any Taxing Authority in respect of any such asserted Tax Claim.
(iid) Seller Representative Seller, at its own expense, shall have the sole right to represent Reserves LLC and the Partnership's interests in any Tax Claim for Taxes for which it is indemnifying Buyer against and to employ counsel of its choice. Buyer shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Action at its own expense. Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and not consent to the entry of any judgment or enter into any settlement with respect to, that reasonably would be expected to have an adverse effect on the claim Income Taxes of Reserves LLC or Reserves LLC's interest in the Partnership in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and period after the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes Closing Date without the consent of Buyer's consent, which consent shall not be unreasonably withheld. Buyer's consent shall in no way reduce any indemnification due to Buyer under subsection 16.1(a). If Seller elects to control the defense, conditioned compromise or delayedsettlement of any Tax Claim, if, Seller shall keep Buyer informed of the progress and disposition of such Tax Claim. Buyer shall handle any other Tax Claims of Reserves LLC or Reserves LLC's interest in the good faith judgment of BuyerPartnership, the and Buyer shall be entitled to defend, compromise or settle such Tax Claims in its sole discretion without in any way reducing its rights to indemnification under subsection 16.1(a), unless any such settlement ofwould give rise to a tax claim against Seller, or an adverse judgment with respect toand in such event such settlement shall be subject to Seller's consent, the claim would reasonably which shall not be expected to adversely affect any Indemnified Taxpayerunreasonably withheld.
(ce) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for taxable period of Reserves LLC or the Partnership beginning before and ending after the Closing Date (a "Straddle Period"), Buyer shall control, and Seller, at its own expense, shall have the right to participate in, the defense and settlement of any Tax for which a Tax Authority asserts a claim within ninety (90) days before Claim and each Party shall cooperate with the end other Party and there shall be no settlement or closing or other agreement with respect thereto without the consent of the applicable statute other Party, which consent shall not be unreasonably withheld; provided, that if either Party shall refuse (the "Refusing Party") to consent to any settlement, closing or other agreement agreed to by the relevant Taxing Authority with respect to any such Tax Claim that the other party (the "Accepting Party") proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party's Liability with respect to the subject matter of limitations, an Indemnified Taxpayer the Proposed Settlement shall be treated as having provided timely notice limited to the amount that such Seller Party by providing written notice to Seller Representative on or before Liability would have been if the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one handProposed Settlement had been accepted, and Buyer, on (ii) the other hand, Refusing Party shall divide evenly the financial responsibility be responsible for all transfer, documentary, sales, use, stamp, registration Liabilities and other such Taxes and fees (including any penalties and interest) expenses incurred or imposed thereafter in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution contest of any such Tax Returns and other documentationClaim to the extent that the final settlement is more than the Proposed Settlement.
Appears in 1 contract
Indemnification for Taxes. (a) Seller The Purchaser Indemnified Parties shallshall be indemnified, jointly defended and severally, indemnify Buyer held harmless by the PPB Sub from and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, against any and all Damages directly Losses arising out of, resulting from:
from or related to (i) any breach of or inaccuracy in any representation and warranty contained in Section 3.12 of the Merger Agreement; (ii) Taxes of any of the Company allocable to and its Subsidiaries for any period ending on or prior to the Closing Pre-Acceptance Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Tax Period; (iiiii) any Taxes of any other Person imposed on any of the Company (or Buyer its Subsidiaries for any Pre-Acceptance Date Tax Period, whether imposed as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.77011.1502-3 6 or any similar provision of stateany foreign, state or local Tax law having similar effect, by contract or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d)otherwise; or
and (iv) any breach of or the failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except Company and its Subsidiaries to comply with their obligations under this Section 2; provided, however, that no indemnity shall be provided under this Section 2(a) for any Losses to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment current liability for Taxes that is set forth on the ADS Business Balance Sheet (as such term is defined in the Working Capital Reconciliation Agreement) and taken into account in determining the Acceptance Date Net Working Capital (as such term is defined in the Working Capital Reconciliation Agreement). The amount of all indemnification obligations under this Agreement shall be (a) increased to take account of any net Tax cost actually incurred by the Purchaser Indemnified Party arising out of or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), with any indemnity payments hereunder (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically grossed up for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursementssuch increase) and (zb) Sellers will remain responsible for reduced to take account of any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any net Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim benefit actually realized by the Tax Authority.
(d) Sellers, on Purchaser Indemnified Party arising from the one hand, and Buyer, on incurrence or payment of any such indemnified amount. In computing the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution amount of any such Tax Returns and cost or Tax benefit, the Purchaser Indemnified Party shall be deemed to recognize all other documentationitems of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified amount. For the purposes of this Section 2(a), reference to any "Loss" of any description shall be deemed to include amounts that would have constituted a "Loss" but for the set-off or other utilization of any loss, deduction or credit realized in, or attributable to, a Post-Acceptance Date Tax Period.
Appears in 1 contract
Samples: Indemnification and Tax Matters Agreement (DG FastChannel, Inc)
Indemnification for Taxes. (a) Seller Parties shall, jointly For the period from and severally, indemnify Buyer and its Affiliates, including, after the Closing, Closing Date and ending 60 days after expiration of the Company applicable statute of limitations (each herein sometimes referred to as an “Indemnified Taxpayer”including any extensions thereto), againstSeller agrees to indemnify, and protect, save defend and hold harmless each Indemnified Taxpayer from, the Buyer Indemnitees from and against any and all Damages directly resulting from:
Losses attributable to (i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date orAcquired Companies for all Pre-2011 Tax Periods, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) Taxes for which any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Acquired Companies is liable pursuant to Treasury Regulation Section 301.77011.1502-3 6 or any similar provision of state, local or foreign Legal Requirements;
Law by virtue of having been a member of any affiliated, consolidated, combined, or unitary group prior to the Closing Date, (iii) the portion breach of any covenants relating to Taxes made by Seller in Section 5.2(a)(x), Section 5.14, Section 5.24 and/or this Section 9.2, (iv) 50% of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
and (ivv) any breach of any representation or failure warranty set forth in Section 3.10 (it being understood that for purposes of this Section 9.2(a)(v) such representations and warranties shall be interpreted without giving effect to perform any representation, warranty, covenant express limitations or agreement in this Agreement relating qualifications as to Taxes or Tax Returns.
(imateriality set forth therein) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent such breach or warranty relates to the rights existence of the indemnifying party are actually materially prejudicednet operating losses, tax basis of any tangible or intangible asset of an Acquired Company, or any other deferred tax asset with respect to an Acquired Company that is not included in Book Value.
(iib) Seller Representative shall have For the right to defend against any claim under subsection (b)(i) at Sellers’ expense period from and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive after the Closing until sixty (60) Date and ending 60 days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end after expiration of the applicable statute of limitations, an Indemnified Taxpayer Buyer agrees to indemnify, defend and hold harmless the Seller Indemnitees from and against any Losses attributable to (i) breach of any covenants relating to Taxes made by Buyer in Section 5.14, Section 5.24 and/or this Section 9.2 and (ii) 50% of any Transfer Taxes.
(c) Buyer shall be treated liable for any Ordinary Taxes (as having provided timely notice defined in Section 9.2(d)) of the Acquired Companies that are attributable to (i) any taxable period beginning on January 1, 2011 and ending on the Closing Date or (ii) the portion of any Closing Date Straddle Period or December 31 Straddle Period beginning on January 1, 2011 and ending on the Closing Date (the “Stub Period”) and, where Seller (or an affiliate of Seller) as a matter of law is required to pay such Ordinary Taxes with respect to such Stub Period in its return , Buyer shall reimburse Seller Party by providing written notice to Seller Representative on or before the ninetieth for such Ordinary Taxes within fifteen (90th15) day after the Indemnified Taxpayer’s days of receipt of a written assertion notice setting forth the computation of the claim by amount of such Ordinary Taxes. Seller shall be liable for any Extraordinary Taxes (as defined in Section 9.2(d)) for the Tax Authority.
(d) SellersStub Period and, on the one hand, and where Buyer, on any of the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other Acquired Companies (or an Affiliate of Buyer or any Acquired Company) as a matter of law is required to pay such Extraordinary Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Stub Period in its return, Seller shall reimburse such party for such Extraordinary Taxes within fifteen (15) days of receipt of a notice setting forth the computation of the amount of such Extraordinary Taxes, and, if required . Any dispute regarding the calculation of Ordinary Taxes and/or Extraordinary Taxes for the Stub Period shall be resolved as follows. Buyer and Seller shall cooperate in good faith to resolve such disputed items within fifteen (15) days after written notification of such disagreement by applicable Legal RequirementsBuyer to Seller or Seller to Buyer. If Buyer and Seller cannot resolve their disagreement within fifteen (15) days after written notification of such disagreement, Buyer willand Seller shall submit the necessary information to the Independent Accounting Firm to resolve the dispute regarding the amount of Ordinary Taxes and/or Extraordinary Taxes for the Stub Period. The determination of the Independent Accounting Firm shall be final and made no later fifteen (15) days prior to the date when any Tax Return relating to the Ordinary Taxes and/or Extraordinary Taxes is due. The parties shall be bound by the determination of the Independent Accounting Firm. For any December 31 Straddle Period or any Closing Date Straddle Period, and will cause its Affiliates tofor purposes of determining the Taxes attributable to a specified portion (“Specified Portion”) of such December 31 Straddle Period or Closing Date Straddle Period, join Taxes shall be allocated as follows:
(i) in the execution case of Taxes based on or measured by income or receipts, deemed equal to the amount that would be payable based on an interim closing of the books as of the beginning and end of or the Specified Portion;
(ii) in the case of Taxes that are based upon gross premiums, deemed equal to the amount that would be payable with respect to the premiums written as of the close of business on the last day of the Specified Portion;
(iii) in the case of Taxes imposed on a periodic basis with respect to the assets of Seller or the Acquired Companies, or otherwise measured by the level of any item, deemed to be the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the Specified Portion and the denominator of which is the number of calendar days in the entire period; and
(iv) In the case of any credits attributable to the Specified Portion, the portion of any such Tax Returns and other documentationcredit that is allocable to the Specified Portion shall be determined in the same manner as would be applicable to the Taxes to which such credits relate.
Appears in 1 contract
Samples: Stock Purchase Agreement (Renaissancere Holdings LTD)
Indemnification for Taxes. Except as otherwise provided herein, Sellers shall be liable for and shall indemnify the Buyer Indemnified Parties for (ax) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred any Losses attributable to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of any member (other than the Company allocable to any period ending on or prior to the Closing Date orits Subsidiary) of an affiliated, as provided in Section 7.3(b)consolidated, allocable to the pre-Closing portion combined or unitary group of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on which the Company (or Buyer as its Subsidiary is or was a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect member on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership including pursuant to Treasury Regulation Regulations Section 301.77011.1502-3 6 or any similar provision of state, local or foreign Legal Requirements;
law, (ii) any Taxes that are imposed on the Company or its Subsidiary for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (iii) the portion any Taxes of any Transfer Taxes that are person (other than the responsibility of Sellers Company or its Subsidiary) liability for which is imposed on the Company or its Subsidiary as a transferee or successor, by contract or otherwise, pursuant to Section 7.2(d); or
a transaction or contract or other indemnification obligation that occurs or arises before the Closing, and (iv) any breach Taxes that are imposed on the Company or its Subsidiary for any taxable year or period in connection with the spinoff of the CareerBliss Division pursuant to the Contribution and Distribution Agreement, dated as of February 28, 2013, by and among the Company, CyberCoders, Inc., a California corporation, and CareerBliss, Inc., a California corporation; and (y) any Losses (including Taxes) for which the Company or failure to perform its Subsidiary, Buyer or any representation, warranty, covenant of Buyer’s Affiliates become liable as a result of the inaccuracy of any representation or agreement in this Agreement warranty relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result Sellers in Section 4.15 of this Agreement. Without limiting the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights generality of the foregoing or any other provision hereof, Sellers shall be liable for and shall indemnify the Buyer Indemnified Taxpayer except to Parties for any Losses (including Taxes) for which the extent the rights Company or its Subsidiary, Buyer or any of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel Buyer’s Affiliates become liable as a result of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed the inaccuracy of any representation or warranty made by Sellers in Section 4.15(j) of this Agreement, considered without giving effect to any exceptions to such representation set forth on the status Disclosure Schedules, and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed the non-payment, forgiveness or recharacterization of any advances or loans to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense service providers of the claim actively Company or its Subsidiary and, for purposes of these Sections 11.2(a)(A) and diligently11.2(a)(B), and Losses shall include (Dwithout limitation) if the applicable Indemnified Taxpayer is requested cost of any tax gross-up or make-whole payments paid to pay or on behalf of any service provider(s) of the Tax claimed and sue for a refundCompany or its Subsidiary in connection with the remediation of any such breach (disregarding any disclosures on the Disclosure Schedules, and if so requested by Bxxxxnon-payment, forgiveness or recharacterization, as applicable). Notwithstanding the foregoing, Sellers shall have advanced no obligation pursuant to this Section 11.2(a) for any Taxes or Losses that are accrued or reserved as a liability on the Closing Date Working Capital. In determining whether any transaction occurs on the Closing Date, it is expressly understood and agreed that amounts included as Company Transaction Expenses and Change of Control Payments shall be treated as deductions in the Tax Returns for taxable periods ending on the Closing Date to the extent such Indemnified Taxpayer, on an interest free basis, the full amount amounts are deductible in such Indemnified Taxpayer is requested to pay. If taxable periods under any provision of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Code and the Treasury Regulations thereunder. Buyer and its includible Affiliate or Affiliates, will file a consolidated federal income tax return including the applicable Indemnified Taxpayer may defend against, and consent to income of the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically Company for the costs of defending against period beginning on the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive day after the Closing until sixty (60) days following Date. Tax Returns for the period ending on the Closing Date will be prepared by closing the books at the end of the applicable statutes Closing Date under the general provisions of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety Treasury Regulation 1.1502-76(b)(1)(ii)(A) and (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”b)(2)(i), and Seller Representative no election will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationbe made under Treasury Regulation 1.1502-76(b)(2)(ii)(D).
Appears in 1 contract
Indemnification for Taxes. (a) Each Seller Parties shall, shall jointly and severallyseverally indemnify the Purchaser, indemnify Buyer MANO, MANO I, Manischewitz, each of their Subsidiaries and its Affiliates, including, after the Closing, the Company their Affiliates and each Purchaser Indemnified Party (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save such term is hereinafter defined) and hold harmless each Indemnified Taxpayer fromthem harmless, any from and all Damages directly resulting from:
against (i) any and all Income Taxes for which MANO, MANO I, Manischewitz or any of their Subsidiaries (or any predecessor company to any of the Company allocable to foregoing) is or may be liable (or for which the Purchaser is or may be liable as a result of its direct or of indirect ownership of any period ending on or prior to of the Closing Date or, as provided foregoing companies) in Section 7.3(b), allocable to the prerespect of a Pre-Closing portion Period or the Pre-Closing Portion of any period that begins on or before and ends after the Closing Date;
Straddle Period, (ii) any Taxes of increase in any other Person imposed on Income Tax for which the Company Purchaser, MANO, MANO I, Manischewitz or any Subsidiary (or Buyer any predecessor company) is or may be liable resulting from the inability to deduct any amount in connection with any management bonuses contemplated hereby or any of the other transactions contemplated by this Agreement as a result of Section 280G of the Code, (iii) any increase in employment or withholding Tax for which the Purchaser, MANO, MANO I, Manischewitz or any Subsidiary (or any predecessor company) is or may be liable as a result of the Company being a disregarded entity post-Closingcancellation of the Options by MANO I, the payment of the management bonuses contemplated hereby or any of the other transactions contemplated by this Agreement; provided, however, that there shall not be any double counting based upon the reduction of the Purchase Price already taken in account under clause (v) (A) of Section 2.2 for the estimated increase in employment and withholding Tax as a result of the cancellation of Options and the payment of the management bonuses or amounts payable, if any, at Closing under the Kroll Letter Agreement, and (iv) in each case, any written Tax sharing Loss in connection therewith, including, without limitation, all fees and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by the Purchaser, MANO, MANO I, Manischewitz, any of their Subsidiaries or Tax allocation agreement their Affiliates in effect on connection therewith or prior to the Closing Date, in enforcing any of their rights hereunder.
(Bb) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described The indemnity provided for in this clause Section 6.12: (Bi) relate to an event or transaction occurring on or prior to shall apply notwithstanding any investigation made by Purchaser in connection with the Closing Date), or transactions contemplated by this Agreement; (Cii) by reason shall be separate and independent of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or any other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar indemnity provision of state, local or foreign Legal Requirements;
contained herein; (iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI contrary notwithstanding shall survive until three (3) months after the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end expiration of the applicable statute of limitations, an Indemnified Taxpayer including extensions or waivers thereof, for any such Taxes or other items; and (iv) shall not be limited to the Indemnification Limit (as such term is hereinafter defined).
(c) The Sellers designate Kohlberg & Co., L.L.C. (the "Sellers' Designee") to represent the Sellers and act on their behalf in connection with any Tax Claim (as defined below) or dispute relating to any Tax. The actions of the Sellers' Designee shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before considered the ninetieth (90th) day after the Indemnified Taxpayer’s receipt actions of a written assertion all of the claim Sellers. The decisions, actions and inactions of the Sellers' Designee with respect thereto shall be final and binding on each of the Sellers and may be relied on by the Tax AuthorityPurchaser. Any fees or expenses of the Sellers' Designee shall be borne solely by the Sellers.
(d) SellersEach Seller shall forward to the Purchaser within fifteen (15) days after receipt a copy of each written communication from any Governmental Entity or Regulatory Authority received by such Seller that relates to any Tax for which MANO, on the one handMANO I, and BuyerManischewitz or any of their Subsidiaries is or may be liable or any pending, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect proposed or threatened Proceeding relating to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.(collectively, a "Tax Claim"). The Purchaser shall forward to the Sellers' Designee within fifteen (15) days after receipt a copy of each written communication from a Governmental Entity or Regulatory Authority received by it that relates to any Tax in respect of a Pre-Closing Period or the Pre-Closing Portion of any Straddle for which MANO, MANO I, Manischewitz or any of their Subsidiaries is or may be liable or any Tax Claim relating to any such
Appears in 1 contract
Indemnification for Taxes.
(a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from::
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) )
(A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); oror
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns..
(ib) If (i)If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Assure Holdings Corp.)
Indemnification for Taxes. From and after the Closing Date and to the extent the amount of such Taxes or Damages has not been taken into account in determining the Working Capital Amount pursuant to Section 2.4 of this Agreement (a) provided that, for this purpose, any amount of Taxes or Damages shall be treated as having not been taken into account in determining the Working Capital Amount if such amount has been paid or settled pursuant to Section 6.13), Seller Parties shallParent and Seller shall be responsible for, and shall jointly and severally, severally indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless Purchaser, Purchaser Parent and each of the Subject Companies and each of their Affiliates (and any successor thereto) from (A) any Damages suffered, paid or incurred by any Indemnified Taxpayer from, Purchaser Entity resulting from or caused by any and all Damages directly resulting from:
breach of (i) any Taxes of the Company allocable to representations and warranties made by Seller and Seller Parent in Sections 4.12 and 4.19(f) of this Agreement or (ii) any period ending covenant set forth in Section 6.1(n) of this Agreement and (B) any and all Taxes (i) imposed on any member of the Seller Parent’s Group (other than the Subject Companies) for any taxable year, (ii) imposed on any of the Subject Companies or for which any of the Subject Companies may otherwise be liable for any taxable year that ends on or prior to before the Closing Date orand, as provided in Section 7.3(b), allocable with respect to the pre-Closing portion of any period that begins on or taxable year beginning before and ends ending after the Closing Date;
, the portion of such taxable year ending on (iiand including) the Closing Date (such portion being referred to hereinafter as the “Interim Period”) (the Interim Period and any Taxes of any other Person taxable year that ends on or before the Closing Date being referred to collectively hereinafter as the “Pre-Closing Period”), (iii) imposed on the another Person for which any Subject Company (or Buyer as a result is liable pursuant to Section 1.1502-6 of the Company being a disregarded entity post-Closing) Treasury Regulations (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
Tax law), or pursuant to rules imposing transferee liability, or by virtue of such Subject Company’s having been affiliated with, or being a transferee of, such other Person prior to the Closing or (iiiiv) arising from any of the Elections described in Section 10.6 below, in each case, together with interest, penalties, reasonable attorney’s fees and other reasonable expenses relating thereto; provided that the foregoing shall not include any Taxes described in clause (ii) of the following sentence. From and after the Closing Date, except with respect to Taxes for which Seller Parent and Seller are responsible pursuant to the immediately preceding sentence, Purchaser, Purchaser Parent and each of the Subject Companies shall be responsible for, and shall jointly and severally indemnify and hold harmless Seller Parent and Seller Parent’s Group (or any successor thereto) from, any and all Taxes imposed on the Subject Companies, Purchaser, Purchaser Parent or Purchaser’s Affiliated Group (or any successor thereto) for (i) any taxable year that begins after the Closing Date and, with respect to any taxable year beginning before and ending after the Closing Date, the portion of any Transfer Taxes that are such taxable year commencing on the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representationday after the Closing Date, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
and (ii) Seller Representative shall have any transfer of assets by the right to defend against Subject Companies (other than any claim under subsection (b)(i) at Sellers’ expense transfer in the ordinary course of business and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any transfer or deemed transfer arising from any of the conditions in clauses (AElections) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive after the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationClosing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Principal Financial Group Inc)
Indemnification for Taxes. Notwithstanding anything to the contrary in this Agreement (a) Seller Parties shall, in particular Section 9):
10.3.1 The Sellers shall jointly and severally, severally indemnify Buyer and its Affiliates, including, after the Closing, the Company Companies (each herein sometimes referred to as an “Buyer Indemnified Taxpayer” and together with Sellers, each an “Indemnified Taxpayer”), ) against, and agree to jointly and severally protect, save and hold harmless each Buyer Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date orclaims, as provided in Section 7.3(b)damages, allocable to the pre-Closing portion of any period that begins on or before deficiencies and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Datelosses and all expenses, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursementsdisbursements (all herein referred to as “Tax Losses”), resulting from:
(a) a claim by any Governmental Authority for any Taxes, except to the extent such Taxes have been previously paid, deposited, or accrued in Actual Net Working Capital on the Actual Closing Balance Sheet, allocable to any period ending on or prior to the Effective Date, or in the case of income Taxes, the Closing Date, or allocable pursuant to Section 10.2.3 to that portion of any Straddle Period ending on the Effective Date, or in the case of income Taxes, the Closing Date, of (A) either the Companies or the Sellers and (zB) Sellers will remain responsible any corporation that is or was a member of an Affiliated Group of which such Company was or is a member, or any liability of any of the foregoing for the Taxes of any Person, whether as a transferee or successor, by contract or otherwise;
(b) a claim by any Governmental Authority for any Damages Buyer or any other Indemnified Taxpayer may suffer Taxes arising from the sale of the Units pursuant to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.Agreement;
(c) Notwithstanding anything any breach of any representation, warranty or obligation set forth in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.Section 10;
(d) Sellers, any Taxes owing in respect of item 3 on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationSchedule 10.1.1.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Mastec Inc)
Indemnification for Taxes. (a) The Seller Parties shall, jointly and severally, shall indemnify the Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Tax Losses”), resulting from:
(i) (A) any Taxes of the Company or the Seller allocable to any period ending on or prior to the Closing Effective Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
Effective Date (iibut only to the extent that such Taxes relate to the portion of the taxable period ending on the Effective Date in accordance with Section 6.2(b)), except to the extent the liability for such Taxes is included in computing net working capital and (B) any Taxes of any other Person imposed on the Company (or Buyer as any corporation that is or was a result member of an Affiliated Group of which the Company was or is a member, or any liability of any of the Company being a disregarded entity post-Closing) (A) as a result foregoing for the Taxes of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing DatePerson, (B) whether as a transferee or successor, by contract or otherwise under applicable Legal Requirements otherwise;
(which ii) Any Taxes described in this clause (B) relate to an event arising from or transaction occurring on or prior to occasioned by the Closing Date), or (C) by reason sale of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership the Company’s capital stock pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Section 6.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d6.3(c); or
(iv) , upon notice from the Buyer to the Seller that an Indemnified Taxpayer is entitled to an indemnification payment for a Tax Loss pursuant to Section 6.3(a), the Seller thereupon shall pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationthe payment, warranty, covenant or agreement in this Agreement relating to Taxes or will indemnify and hold the Indemnified Taxpayer harmless from the Tax ReturnsLoss.
(i) If a written claim is shall be made by any Tax Governmental Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify the Seller Representative in writing of such that fact; provided provided, however, that any failure to give such the notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudicedTaxpayer.
(ii) The Seller Representative shall have the right to defend the Indemnified Taxpayer against any the claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed the Seller notifies the Indemnified Taxpayer in writing within 30 days after the Indemnified Taxpayer has given notice of the status claim that the Seller will indemnify the Indemnified Taxpayer from and progress against the entirety of such claim and related proceedingsany Tax Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, Sellers the Seller shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (C) the Seller conducts the defense of the claim actively and diligently.
(iii) Subject to the provisions of paragraph (ii) above, the Seller shall be entitled to prosecute the contest to a determination in a court of initial jurisdiction, and if the Seller shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, the Seller shall provide to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(iv) The Seller shall not be entitled to settle or to contest any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the good faith judgment of the Indemnified Taxpayer, to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Seller pursuant to paragraph (ii)(D) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to the Seller any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the Governmental Authority and any recovery of legal fees from the Governmental Authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Tax Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayer with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the Governmental Authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before the time that the Seller shall have made all payments or indemnities then due with respect to Indemnified Taxpayer pursuant to this Section 6.
(vi) If any of the conditions in clauses Section 6.3(c)(i) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or the Seller Representative in connection therewith), (yB) Sellers the Seller will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements) and (zC) Sellers the Seller will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.26.3.
(iiid) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties under this Article VI Section 6 shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Governmental Authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such the Seller Party by providing written notice to the Seller Representative on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Governmental Authority.
(de) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration and other such similar Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by the Seller when due, and the Seller Representative will will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxesthe transfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal Requirementslaw, the Buyer will, and will cause its Affiliates to, join in the execution of any such of those Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallTo the extent not accrued as a liability in the Closing Balance Sheet, Sellers, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company severally (reserving unto each herein sometimes referred to as an “Indemnified Taxpayer”other any rights of contribution), againstshall indemnify Purchaser, Company and protect, save their respective Affiliates and hold each of them harmless each Indemnified Taxpayer from, any (on an after- Tax basis) from and all Damages directly resulting from:
against (i) any and all Taxes of the Company allocable to (or any predecessor company thereto or any Subsidiary) in respect of any period ending on or before the Closing Date, or in the case of a period that includes but does not end at the Closing Date, the portion thereof prior to and including the Closing Date or(such period or portion, as provided in Section 7.3(ba “Pre-Closing Period”), allocable except for any Taxes imposed pursuant to Section 1374 of the Code (and any analogous state and local provisions) resulting from the sale of the Property pursuant to the pre-Closing portion of any period that begins on or before Purchase and ends after the Closing Date;
Sale Agreement; (ii) any and all Taxes for which the Company may be or become liable by reason of (1) being a member of an affiliated, combined, consolidated, or unitary group at any time prior to the Closing, including under Treasury Regulation Section 1.1502-6 or any analogous or similar provision under any state, local or foreign Tax Law or (2) being a successor-in-interest or transferee of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), Closing; or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion effect of any Transfer breach of a representation in Section 5.12 or covenant in Section 12.2 or other covenant with respect to Taxes, in each case, all reasonable costs (including reasonable attorneys’ fees and related disbursements and expenses) incurred by Company, Purchaser or any of their Affiliates in connection therewith or in enforcing its rights hereunder.
(b) The indemnities provided for in this Section 10.2 (i) shall apply notwithstanding any investigation made by Purchaser in connection with the transactions contemplated by this Agreement or its receipt or review of or comments on, any Return, (ii) shall be separate and independent of any other indemnity provision contained herein and (iii) anything in this Agreement to the contrary notwithstanding, shall survive until three (3) months after the expiration of the applicable statute of limitations, including extensions or waivers thereof. The provisions of Sections 10.5 and 10.6 shall not apply to claims for indemnification under this Section 10.2.
(c) Sellers shall promptly forward to Purchaser a copy of all written communications from a Tax authority received by any of the Sellers that relates to Company, its income, assets, payroll or operations, including any notice of a Tax Proceeding with respect to the Taxes that are of the responsibility Company. Purchaser shall promptly forward to Sellers’ Representative a copy of all written communications from a Tax authority received by it for which the Sellers may be liable under this Section 10.2, including any notice of a Tax Proceeding.
(d) Purchaser agrees not to settle or make any payment of an amount claimed to be due with respect to a proposed adjustment or undertake the defense or control of any Tax Proceeding for which Sellers may be liable under this Section 10.2 for at least fifteen (15) days after giving notice to Sellers pursuant to Section 7.2(d10.2(c); or
. If, within such fifteen (iv) any breach of or failure to perform any representation15)-day period, warranty, covenant or agreement in this Agreement relating to Taxes Purchaser receives a written request from Sellers that the proposed adjustments or Tax Returns.
(i) If Proceeding will be contested or defended, which includes a written statement of a reasonable basis in fact and in law for such contest, which includes an acknowledgement that the claim or Tax Proceeding is made by any Tax Authority thatone to which the indemnity herein applies, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative Sellers shall have the right thereafter to defend against any claim under subsection (b)(i) at Sellers’ expense undertake, conduct and with control, through counsel of Seller Representative’s choice so long its own choosing and at its expense, the settlement and defense of such matter, and agree to keep Purchaser informed as (A) Buyer is kept reasonably informed to the progress of the status and progress of such claim and related proceedingsmatter, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedingsprovided, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlyhowever, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, that Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or not enter into any settlement with respect to, the claim in or compromise of any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes such matter without the prior written consent of BuyerPurchaser, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. Purchaser shall reasonably cooperate with Seller in connection with any such contest or Tax Proceeding. Notwithstanding the foregoing, Purchaser shall have the right thereafter to undertake, conduct and control, through counsel of its own choosing and at its expense, the settlement and defense of any matter that relates to a Straddle Period, and agree to keep Sellers’ Representative informed as to the progress of the matter, provided, however, that Purchaser shall not enter into any settlement or compromise of any such matter which settlement or compromise would result in an indemnification obligation of Sellers under this Agreement without prior written consent of Sellers’ Representative, which consent shall not be unreasonable withheld, delayed or conditioned. Sellers’ Representative shall reasonably cooperate with Purchaser in connection with any such contest or Tax Proceeding.
(e) If Company (any successor thereto), Purchaser or their Affiliates are subject to any Taxes in any taxable period (or portion thereof) after the Closing Date with respect to the Oil Spill Claims (including any deemed or constructive receipt of the proceeds of such Oil Spill Claims), then Sellers hereby agree to indemnify Company (any successor thereto), Purchaser and their Affiliates from and against any and all incremental Taxes, if any, incurred by Company (any successor), Purchaser or their Affiliates related to the Oil Spill Claim. The Company shall also be permitted to reduce the amount of the distribution to be made under Section 8.1(e) to satisfy such indemnification obligation of Sellers. For example, if, in a taxable period, upon the good faith judgment receipt of Buyerproceeds of Oil Spill Claims, the settlement ofCompany must recognize the proceeds in its income for Tax purposes but is allowed a full deduction for Tax purposes for the distribution of such proceeds under Section 8.1 and, or an adverse judgment with respect toas a result, neither the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contraryCompany, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for Purchaser nor their Affiliates incur any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxesthe Oil Spill Claims for that taxable period, andthen the Sellers would not have any obligations under this Section 10.2(e) for that taxable period; conversely, if required the Company, Purchaser or their Affiliates incurs such a Tax, the Company shall be permitted to reduce the amount of the distribution to be made under Section 8.1 by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution amount of any such Tax Returns and other documentationand/or seek indemnification from the Sellers, as the case may be.
Appears in 1 contract
Samples: Stock Purchase Agreement
Indemnification for Taxes. (a) Except to the extent taken into account in determining the Final Stockholders' Equity (as finally determined), JWGFC and Seller Parties shallshall bear and pay when due, jointly and severally, shall fully indemnify Buyer Fiserv and its Affiliates, including, after the ClosingBuyer, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), againstand their subsidiaries and affiliates, and protectall directors, save officers, employees, contractors or agents of same, and hold them harmless each Indemnified Taxpayer from, any on an after-Tax basis from and all Damages directly resulting from:
against (i) any and all Taxes of for which the Company allocable to (or any predecessor company thereto) is or may be liable in respect of (x) any period ending that ends on or prior to before the Closing Date or, as provided in Section 7.3(b), allocable or (y) with respect to the pre-Closing portion of any a period that begins on or before and ends after the Closing Date;
, the portion of such period, if any, through and including the Closing Date (each such period or portion under clause (x) or (y), a "PRE-CLOSING PERIOD"), (ii) any Taxes the adverse effect, if any, of any other Person imposed the underlying adjustments on Fiserv, Buyer, the Company or their subsidiaries and affiliates in any period that ends after the Closing Date, (or iii) any increased Tax on Fiserv, Buyer as a result of the Company being a disregarded entity post-Closing) (A) or their subsidiaries and affiliates in any Tax period as a result of any written Tax sharing breach of Xxxxxxx 0.00, Xxxxxxx 0.00 (x) (xx) or Tax allocation agreement Section 3.06 (b) and (iv) in effect on each case together with all reasonable legal, accounting or prior to other fees and expenses incurred by Fiserv and Buyer, the Closing DateCompany or their subsidiaries and affiliates in connection therewith or with enforcing their rights hereunder.
(b) The indemnity provided for in this Agreement, (Bi) as a transferee shall apply notwithstanding any investigation made by Fiserv or successorBuyer in connection with the transactions contemplated by this Agree- ment, or otherwise under applicable Legal Requirements (which Taxes described in this clause (Bii) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason shall be separate and independent of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or any other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar indem- nity provision of state, local or foreign Legal Requirements;
contained herein and (iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI contrary notwithstanding shall survive until two months after the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end expiration of the applicable statute of limitations, an Indemnified Taxpayer including extensions or waivers thereof, for any such Taxes or other items.
(c) JWGFC and the Seller shall be treated as having provided timely notice promptly forward to such Seller Party Fiserv and Buyer a copy of all written communications from any Taxing authority received by providing written notice it or the Company that relates to Seller Representative on any Tax imposed on, or before with respect to the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.Company. Fiserv and Buyer
(d) SellersFiserv and Buyer agree not to settle or make any payment of an amount claimed to be due with respect to a proposed adjustment described in subparagraph (c) above with respect to any Pre-Closing Period for at least 20 days after giving such notice in subsection (c). If, within such 20-day period, Fiserv and Buyer receive a written request from JWGFC and the Seller that the proposed adjustments be contested, which includes a statement of a reasonable basis in fact and in law for such contest, Fiserv and Buyer shall contest such proposed adjustments in good faith, provided they receive from JWGFC and Seller security for the payment of amounts indemnified under this Agreement with respect to such contest which is reasonable in kind and amount based on the one handfacts and circumstances at such time and they agree to keep JWGFC and the Seller informed as to its progress, all at JWGFC's and Buyerthe Seller's expense, on jointly and severally; provided that, JWGFC and Seller shall have the other handright to join in such contest by providing, at their own expense, counsel to represent them in such contest. JWGFC and Seller fully and timely shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration cooperate with Fiserv and other such Taxes and fees (including any penalties and interest) incurred Buyer in connection with any such proceeding. Fiserv and Buyer shall not be required to appeal any adverse decision of a court of competent jurisdiction; provided that Fiserv and Buyer shall notify JWGFC and Seller of their intention not to appeal within 15 days of the deadline for the filing of any such appeal, and JWGFC or Seller shall have the option to pursue such appeal, at their own expense; and provided further that JWGFC and Seller shall timely pay any amount that is necessary to perfect the appeal (including without limitation any Tax required to be paid by the Company or bond required to be posted), shall provide Fiserv and Buyer with security for the payment of amounts indemnified under this Agreement (“Transfer Taxes”)which is reasonable in kind and amount based on the facts and circumstances at such time, and agree to keep Fiserv and Buyer informed as to the progress and results of the proceeding. If JWGFC or Seller Representative will file all necessary Tax Returns paid any amount to Fiserv or Buyer pursuant to this indemnity and other documentation subsequently Fiserv or Buyer receives a refund with respect to all such Transfer Taxespayment as a result of appealing the issue underlying such payment, andFiserv or Buyer, if required as the case may be, shall pay to JWGFC or Seller, as the case may be, the amount of such refund relating to such issue within 30 days after it is received.
(e) To the extent permitted by applicable Legal Requirementslaw, the parties shall elect to treat the period that includes but does not end on the Closing Date with respect to any Tax as ending on such date and shall take such steps as may be necessary therefor. For purposes of this indemnification, any Taxes for a period which includes but does not end on the Closing Date shall be allocated between the Pre-Closing Period and the balance of the period based on an interim closing of the books as of the close of the Closing Date, provided, however, that any real property or personal property Taxes and any fixed annual deductions or exemptions shall be allocated based on the relative number of days in the Pre-Closing Period and the balance of the period.
(f) Except to the extent taken into account in determining Final Stockholders' Equity (as finally determined), Buyer willshall pay to Seller an amount equal to any Tax refund received by the Company with respect to any Pre-Closing Period, and will cause its Affiliates to, join in the execution net of any such Tax Returns and other documentationon Fiserv, Buyer, the Company or any of their affiliates as a result of receiving the refund.
Appears in 1 contract
Samples: Stock Purchase Agreement (Jwgenesis Financial Corp /)
Indemnification for Taxes. (a) Seller Parties shall9.3.1 The Sellers hereby agree to indemnify, jointly and severally, indemnify the Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agree to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Tax Losses”), resulting from:
(ia) A claim by any taxing authority for (A) any Taxes of the Company or the Sellers allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date to the extent attributable to the portion of the period ending on the Closing Date;
, except to the extent the liability for those Taxes is included in computing net working capital, and (iiB) any Taxes of any other Person imposed on the Company (or Buyer as any corporation that is or was a result member of an Affiliated Group of which the Company was or is a member, or any liability of any of the Company being a disregarded entity post-Closing) (A) as a result foregoing for the Taxes of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing DatePerson, (B) whether as a transferee or successor, by contract or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirementsotherwise;
(iiib) A claim by any taxing authority for any Taxes arising from or occasioned by the portion sale of any Transfer Taxes that are the responsibility of Sellers Company’s capital stock pursuant to Section 7.2(d)this Agreement; or
(ivc) any Any misrepresentation or breach of or failure to perform any representation, warranty, covenant warranty or agreement obligation set forth in this Agreement relating Section 9.
9.3.2 Subject to the resolution of any Tax contest pursuant to Section 9.3.3(a), upon notice from the Buyer or the Company to the Sellers that an Indemnified Taxpayer is entitled to an indemnification payment for a Tax Loss pursuant to Section 9.3.1, the Sellers thereupon shall pay to the Indemnified Taxpayer an amount that, net of any Taxes or imposed on the Indemnified Taxpayer with respect to the payment, will indemnify and hold the Indemnified Taxpayer harmless from the Tax ReturnsLoss.
(ia) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Sellers in writing of such that fact; provided provided, however, that any failure to give such the notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudicedTaxpayer.
(iib) Seller Representative The Sellers shall have the right to defend the Indemnified Taxpayer against any the claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s their choice satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed the Sellers notify the Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given notice of the status claim that the Sellers will indemnify the Indemnified Taxpayer from and progress against the entirety of such claim and related proceedingsany Tax Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (B) Buyer and Bxxxx’s counsel are allowed the Sellers provide the Indemnified Taxpayer with evidence reasonably acceptable to participate at Bxxxx’s expense in such the Indemnified Taxpayer that the Sellers will have the financial resources to defend against the claim and related proceedingsfulfill their indemnification obligations hereunder, (C) Seller Representative’s if requested by the Indemnified Taxpayer, the Sellers provide to the Indemnified Taxpayer a written position of counsel with respect reasonably satisfactory to such claim is approved by Buyer the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlythat contest, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, the Sellers shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (E) the Sellers conduct the defense of the claim actively and diligently.
(c) Subject to the provisions of paragraph (b) above, the Sellers shall be entitled to prosecute the contest to a determination in a court of initial jurisdiction, and if the Sellers shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, the Sellers shall provide to the Indemnified Taxpayer a written position of counsel reasonably satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(d) The Sellers shall not be entitled to settle any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the reasonable and good faith judgment of the Indemnified Taxpayer, to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(e) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Sellers pursuant to paragraph (b)(D) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to the Sellers any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from the taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Tax Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayers with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before the time the Sellers shall have made all payments or indemnities then due with respect to the Indemnified Taxpayer pursuant to this Section 9.
(f) If any of the conditions in clauses Section 9.3.3(b) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any appropriate; provided, however, the Indemnified Taxpayer need shall, in advance, consult with, or and obtain any consent from, the Sellers or Seller Representative in connection therewith), which consent will not be unreasonably withheld, (yB) the Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements) and (zC) the Sellers will remain responsible for any Damages Buyer or any other Tax Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.29.
(iii) Seller Representative shall not be entitled 9.3.4 Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Sellers under this Article VI Section 9 shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party the Sellers by providing written notice to Seller Representative the Sellers on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all 9.3.5 All transfer, documentary, sales, use, stamp, registration and other such similar Taxes and fees (including any penalties penalties, interest and interestadditions) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by the Sellers when due, and Seller Representative the Sellers, at their own expense, will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxesthe transfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal RequirementsLaw, the Buyer will, and will cause its Affiliates to, join in the execution of any such of those Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. Notwithstanding anything to the contrary in this Agreement (a) Seller Parties shall, in particular Section 9):
10.2.1 Members shall jointly and severally, severally indemnify Buyer Parent and its Affiliates, including, after the Closing, the Company Affiliates (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and agree to jointly and severally protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly Losses, resulting from:
(ia) a claim by any Governmental Authority for any Taxes arising from or occasioned by the Merger or the other Contemplated Transactions;
(b) any misrepresentation or breach of any representation, warranty or obligation set forth in this Section 10;
(c) any liability for the Taxes of the any Company allocable to for any period ending on or prior to before the Closing Date or, as provided in Section 7.3(b), allocable to and the pre-Closing portion of any period that begins Straddle Period ending on or before and ends after the Closing Date;; and
(iid) any Taxes all liabilities of any other Person imposed on the Company (or Buyer Companies as a result of the Company being a disregarded entity postapplicability of Treas. Reg. §1.1502-Closing) (A) as a result 6 or similar provisions of foreign, state or local Tax law for Taxes of any written Tax sharing or Tax allocation agreement in effect other corporation affiliated with any Company on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate .
10.2.2 Upon notice from Parent to the Members’ Representative that an Indemnified Taxpayer is entitled to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being indemnification payment for a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers Loss pursuant to Section 7.2(d); or
(iv) any breach of or failure 10.2.1, the Members thereupon shall jointly and severally pay to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing an amount that, net of such fact; provided that any failure to give such notice will not waive any rights of Taxes imposed on the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion the payment, will indemnify and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and hold the Indemnified Taxpayer promptly and periodically for harmless from the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer Loss.
10.2.3 Notwithstanding anything to the fullest extent provided contrary in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contraryAgreement, the indemnification obligations of the Seller Parties Members under this Article VI Section 10 shall survive the Closing until sixty (60) days the 90th day following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all 10.2.4 All transfer, documentary, sales, use, stamp, registration and other such similar Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be jointly and severally paid by Members when due, and Seller Representative will Members will, at their expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxesthe transfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal RequirementsLaw, Buyer Parent will, and will cause its Affiliates to, join in the execution of any such of those Tax Returns and other documentation.
Appears in 1 contract
Samples: Merger Agreement (Mastec Inc)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before From and ends after the Closing Date;
, the Seller shall be liable for and shall indemnify the Buyer Group Members and hold them harmless from and against any Losses attributable to: (i) all Taxes (or the nonpayment thereof) of each Company (not including PWPG and RDA) for all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes, but does not end on, the Closing Date (each such taxable period shall be referred to as a “Pre-Closing Tax Period”); (ii) any all Taxes of any other Person imposed on the member of an affiliated, consolidated, combined or unitary group of which any Company (not including PWPG and RDA) is or Buyer as was a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect member on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership including pursuant to Treasury Regulation Regulations Section 301.77011.1502-3 6 or any similar provision of state, local or foreign Legal Requirements;
law; and (iii) the portion any Taxes of any Transfer Person (other than the Companies) Liability for which is imposed on the Companies (not including PWPG and RDA) as a transferee or successor, by contract or otherwise, pursuant to a transaction or contract or other indemnification obligation that occurs or arises before the Closing; provided, however, that in the case of clauses (i), (ii) and (iii) above, (x) the Seller shall be liable only to the extent that such Taxes exceed the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) on the Final Closing Date Statement; and (y) notwithstanding anything to the contrary in this Agreement, the Seller shall not be liable for or indemnify the Buyer Group Members against any Losses attributable to Taxes that are the responsibility of Sellers the Buyer pursuant to Section 7.2(d); or
(iv6.12(k) hereof and any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of that constitute an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudicedAssumed Liability.
(ii) From and after the RDA Closing Date, the Seller Representative shall have be liable for and shall indemnify the right to defend Buyer Group Members and hold them harmless from and against any claim under subsection Losses attributable to: (b)(ii) at Sellers’ expense and with counsel all Taxes (or the nonpayment thereof) of Seller Representative’s choice so long as PWPG (Abut not RDA) Buyer is kept reasonably informed of for all taxable periods ending on or before the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer RDA Closing Date and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following portion through the end of the applicable statutes RDA Closing Date for any taxable period that includes, but does not end on, the RDA Closing Date (each such taxable period shall be referred to as a “Pre-RDA Closing Tax Period”); (ii) all Taxes of limitations. With respect any member of an affiliated, consolidated, combined or unitary group of which PWPG (but not RDA) is or was a member on or prior to the RDA Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign law; and (iii) any Taxes of any Person (other than RDA and PWPG) Liability for which is imposed on PWPG (but not RDA) as a transferee or successor, by contract or otherwise, pursuant to a transaction or contract or other indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days that occurs or arises before the end Closing; provided, however, that in the case of clauses (i), (ii) and (iii) above, (x) the Seller shall be liable only to the extent that such Taxes exceed the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income); and (y) notwithstanding anything to the contrary in this Agreement, the Seller shall not be liable for or indemnify the Buyer Group Members against any Losses attributable to Taxes that are the responsibility of the applicable statute of limitations, Buyer pursuant to Section 6.12(k) hereof and any Taxes that constitute an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityRD-180 Assumed Liability.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, The US Sellers hereby indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), Purchaser Indemnitee against, and protectagree to hold each Purchaser Indemnitee harmless from, save and hold harmless each Indemnified Taxpayer fromwithout duplication, any and all Damages directly of the following amounts (such amounts hereinafter referred to as "Purchaser Tax Losses"):
(A) any Tax of Argexxxxxxx Xxxurity or its Subsidiaries imposed with respect to a Pre-Closing Tax Period to the extent such Tax is not paid prior to the Closing Date nor reflected in the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) shown on the face of the Closing Balance Sheet; 112 118
(B) any Tax of Argexxxxxxx Xxxurity or its Subsidiaries incurred as a result of the Section 338(h)(10) Election;
(C) any liability of Argexxxxxxx Xxxurity or any of its Subsidiaries for the payment of any Tax as a result of being a member of an Affiliated Group in any Pre-Closing Tax Period, or being a party to any agreement or arrangement in any Pre-Closing Tax Period as a result of which liability of Argexxxxxxx Xxxurity or any of its Subsidiaries to a Tax Authority is determined or taken into account with reference to the liability of any other Person;
(D) any liability of Argexxxxxxx Xxxurity or any of its Subsidiaries for the payment of any amount as a result of being party to any Tax Sharing Agreement in any Pre-Closing Tax Period or with respect to the payment of any Tax or any amount of the type described in clause (C) as a result of any express or implied obligation (including, but not limited to, an indemnification obligation);
(E) any Tax of Argexxxxxxx Xxxurity or its Subsidiaries resulting from a breach of any of the provisions of this Annex XI by the US Sellers, and
(F) any liabilities, costs, expenses (including, without limitation, reasonable expenses of investigation and attorneys' and accountants' fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax described in this paragraph (a) (including this clause (F)).
(b) The Purchaser hereby indemnifies the US Sellers against, and agrees to hold each US Seller harmless from:, without duplication, any and all of the following amounts (such amounts hereinafter referred to as "US Seller Tax Losses"):
(A) any Tax of Argexxxxxxx Xxxurity or its Subsidiaries imposed with respect to a Post-Closing Tax Period,
(B) any Tax of a US Seller, Argexxxxxxx Xxxurity or its Subsidiaries resulting from a breach of any of the provisions of this Annex XI by the Purchaser, and
(C) any liabilities, costs, expenses (including, without limitation, reasonable expenses of investigation and attorneys' and accountants' fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax described in this paragraph (b) (including this clause (C)).
(c) For purposes of this Section, in the case of any Taxes that are imposed on a periodic basis and are payable for a Tax period that includes (but does not end on) the Closing Date, the portion of such Tax related to a Pre-Closing Tax Period shall (i) in the case of any Taxes, other than gross receipts, sales or use Taxes and Taxes based upon or related to income, be deemed to be the amount of such Tax for the Company allocable to any entire Tax period multiplied by a fraction the 113 119 numerator of which is the number of days in the Tax period ending on and including the Closing Date and the denominator of which is the number of days in the entire Tax period, and (ii) in the case of any Tax based upon or related to income and any gross receipts, sales or use Tax, be deemed equal to the amount which would be payable if the relevant Tax period ended on and included the Closing Date. The portion of any credits relating to a Tax period that begins before and ends after the Closing Date shall be determined as though the relevant Tax period ended on and included the Closing Date. All determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practice of Argexxxxxxx Xxxurity and its Subsidiaries. In the case of an interest in an entity that is fiscally transparent for Tax purposes, items shall be deemed to flow through on a daily basis rather than at the close of the entity's Tax year.
(d) Upon payment by any Purchaser Indemnitee of any Purchaser Tax Loss, the US Sellers shall discharge their obligation to indemnify the Purchaser Indemnitee against such Tax Loss by paying to Purchaser an amount equal to the amount of such Purchaser Tax Loss; provided, however, that if Purchaser provides the US Sellers with written notice of a Purchaser Tax Loss at least thirty (30) days prior to the date on which the relevant Purchaser Tax Loss is required to be paid by any Purchaser Indemnitee, the US Sellers shall discharge their obligation to indemnify the Purchaser Indemnitee against such Purchaser Tax Loss by paying an amount equal to the amount of such Purchaser Tax Loss to the relevant Tax Authority or Purchaser, as directed by Purchaser.
(e) Any payment pursuant to this Section shall be made not later than thirty (30) days after receipt by the indemnifying party of written notice from the indemnified party in accordance with the proviso in Section 11.07(d) of this Annex XI or stating that any Purchaser or US Seller Tax Loss has been incurred and the amount thereof and of the indemnity payment requested.
(f) Notwithstanding anything else in this Annex XI or in the Agreement to the contrary, the computation and payment of any amounts under this Section 11.07 shall not be limited in any way by caps, baskets, thresholds, or other limitations on amounts payable under indemnification provisions elsewhere in the Agreement.
(g) No investigation by Purchaser or any of its Affiliates at or prior to the Closing Date or, as provided in Section 7.3(b), allocable to shall relieve the pre-Closing portion US Sellers of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes liability under this Section. Any claim of any Purchaser Indemnitee (other Person imposed than Purchaser) under this Section may be made and enforced by Purchaser on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing behalf of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudicedPurchaser Indemnitee.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from any and all Damages directly resulting fromIndemnifiable Losses to the extent arising out of the following:
(i) Taxes with respect to the Company for all Pre-Closing Tax Periods, except to the extent of any accrued liability for Taxes taken into account in the calculation of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;Final Adjustment Amount; and
(ii) any liability for Taxes of any Person other Person imposed on than the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to any provision of joint and several liability under Treasury Regulation Section 301.77011.1502-3 or 6 and any similar corresponding provision of state, local local, or foreign Legal Requirements;law.
(iiib) Buyer agrees to indemnify and hold harmless the portion of Seller Indemnified Persons from and against any Transfer and all liabilities for Taxes that are the responsibility of Sellers not subject to indemnification by Seller pursuant to Section 7.2(d8.1(a); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything For purposes of this Agreement, Taxes for a Straddle Period shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in this Agreement the following manner:
(i) in the case of Taxes based on or measured by income, gain, or receipts, or related to the contraryactual or deemed sale or transfer of property, or which are withholding Taxes, such Taxes shall be allocated based on an interim closing of the books as of the Closing Date; and
(ii) in the case of Taxes calculated on a periodic basis, the indemnification obligations portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Seller Parties under this Article VI shall survive Straddle Period ending on the Closing until sixty (60) Date and the denominator of which is the number of days following in the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authorityentire Straddle Period.
(d) SellersNotwithstanding any other provision of this Agreement, the Seller Indemnified Persons shall not be liable for (and Buyer shall indemnify the Seller Indemnified Persons against) any Taxes resulting from any transaction or event that is outside the ordinary course of business and occurs after the Closing but on the one handClosing Date, and Buyer, on unless such transaction or event is initiated by Seller or the other hand, shall divide evenly Company before the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationClosing.
Appears in 1 contract
Indemnification for Taxes. (a) Subject to the limitations set forth in this Agreement, Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any the Buyer Indemnitees from and all Damages directly resulting from:
against: (i) any Taxes of the Company allocable to Transferred Entities for all Pre-Closing Tax Periods, (ii) Excluded Tax Liabilities, (iii) Pre-Closing Restructuring Taxes, (iv) Taxes arising out of any period ending breach of any Tax Covenant or any representation set forth in Section 5.17 by any Selling Corporation, and (v) VAT payable by Seller and its Affiliates under Section 9.3; in each case other than Taxes arising out of (x) any breach of any Tax Covenant made by Buyer or any Buyer Corporation or (y) except as otherwise contemplated or permitted by this Agreement, any action taken outside the ordinary course of business by Buyer or any of its Affiliates after the Closing but on or prior to the Closing Date or(collectively, as provided in the “Pre-Closing Tax Indemnity”). Notwithstanding that a claim for Taxes may fall into multiple categories of this Section 7.3(b9.1(a), allocable a Buyer Indemnitee may recover such Taxes one time only.
(b) Subject to the prelimitations set forth in this Agreement, Buyer shall indemnify and hold harmless the Seller Indemnitees from and against (i) Taxes of the Transferred Entities for all Post-Closing portion Tax Periods, (ii) Assumed Tax Liabilities, (iii) Taxes arising out of any period that begins on breach of any Tax Covenant made by Buyer or before and ends any Buyer Corporation, (iv) except as otherwise contemplated or permitted by this Agreement, Taxes arising out of any action taken outside the ordinary course of business by Buyer or any of its Affiliates after the Closing Date;
(ii) any Taxes of any other Person imposed but on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (Bv) as a transferee or successorVAT payable by Buyer and its Affiliates under Section 9.3 and (vi) Transfer Taxes, or otherwise under applicable Legal Requirements (which in each case other than Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason arising out of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of any Tax Covenant or failure to perform any representation, warranty, covenant or agreement representation set forth in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is Section 5.17 made by any Tax Authority that, if successful, would result in the indemnification Selling Corporation. Notwithstanding that a claim for Taxes may fall into multiple categories of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewiththis Section 9.1(b), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer a Seller Indemnitee may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to recover such Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayerone time only.
(c) Notwithstanding anything in Subject to Section 9.8(e), any indemnity payment for Taxes to be made pursuant to this Agreement Section 9.1 shall be paid within thirty (30) Business Days after any Buyer Indemnitee or Seller Indemnitee claiming it is entitled to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive IX (the Closing until sixty (60“Indemnified Tax Party”) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing makes written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on demand upon the other hand, shall divide evenly party (the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer TaxesIndemnifying Tax Party”), and Seller Representative will file all necessary but in no case earlier than five (5) Business Days prior to the date on which the relevant Taxes (including, for the avoidance of doubt, any estimated Tax Returns and other documentation with respect payments or Tax deposits) are required to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in be paid to the execution of any such Tax Returns and other documentationrelevant Governmental Authority.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Ashland Global Holdings Inc)
Indemnification for Taxes. Except as otherwise provided herein, Sellers (aseverally and not jointly) Seller shall be liable for and shall indemnify the Buyer Indemnified Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
for: (i) any Taxes of the Company allocable Losses attributable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(iiA) any Taxes of any member (other Person imposed on than the Company) of an affiliated, consolidated, combined or unitary group of which the Company (is or Buyer as was a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect member on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership including pursuant to Treasury Regulation Regulations Section 301.77011.1502-3 6 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedingslaw, (B) Buyer any Taxes that are imposed on the Company for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim including the Closing Date, and related proceedings, (C) Seller Representativeany Taxes of any Person (other than the Company) liability for which is imposed on the Company as a transferee or successor, by contract or otherwise, pursuant to a transaction or contract or other indemnification obligation that occurs or arises before the Closing; and (ii) any Losses (including Taxes) for which the Company, Buyer or any of Buyer’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense Affiliates become liable as a result of the claim actively and diligently, and (D) if inaccuracy of any representation or warranty relating to Taxes made by Sellers in Section 4.15 of this Agreement. Notwithstanding the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxxforegoing, Sellers shall have advanced no obligation pursuant to such Indemnified Taxpayer, on an interest free basis, this Section 11.2(a) for any Taxes or Losses to the full amount such Indemnified Taxpayer is requested to pay. If any extent taken into account as a liability in the calculation of the conditions Closing Date Working Capital or which were taken into account in clauses the calculation of the Final Purchase Price as Indebtedness, as finally determined pursuant to Section 2.5(c). In determining whether any transaction occurs on the Closing Date, it is expressly understood and agreed that amounts included as Company Transaction Expenses (Aincluding the Change of Control Payments) through (D) above is or becomes unsatisfiedshall be treated as deductions in the Tax Returns for taxable periods ending on the Closing Date, then (x) to the extent such amounts are deductible in such taxable periods under any provision of the Code and the Treasury Regulations thereunder. Buyer and its includible Affiliate or Affiliates will file a consolidated federal income tax return including the applicable Indemnified Taxpayer may defend against, and consent to income of the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically Company for the costs of defending against period beginning on the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive day after the Closing until sixty (60) days following Date. Tax Returns for the period ending on the Closing Date will be prepared by closing the books at the end of the applicable statutes Closing Date under the general provisions of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety Treasury Regulation 1.1502-76(b)(1)(ii)(A) and (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”b)(2)(i), and Seller Representative no election will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationbe made under Treasury Regulation 1.1502-76(b)(2)(ii)(D).
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Buyer Indemnified Taxpayer from, Persons from and against any and all Damages directly Indemnifiable Losses to the extent resulting fromfrom or arising out of the following:
(i) Taxes imposed on any Taxes Acquired Company, or for which any Acquired Company may otherwise be liable, as a result of the Company allocable to any period ending on or having been a member of a Seller Group prior to the Closing Date or(including Taxes for which any Acquired Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as provided in Section 7.3(ba result of having been a member of a Seller Group), allocable ;
(ii) Taxes with respect to the preany Acquired Company for all Pre-Closing portion Tax Periods,
(iii) Taxes arising out of the Pre-Sale Transactions;
(iv) Taxes arising out of a breach or inaccuracy of the Surviving Tax Representations, other than any period such breach or inaccuracy that begins on or before is attributable to a retroactive change in Applicable Law between the date of this Agreement and ends after the Closing Date;
(v) Taxes arising out of a breach of any covenant of Seller or its Affiliates (including the Acquired Companies, prior to the Closing Date) under Article V or this Article VIII, other than any such breach that is attributable to a retroactive change in Applicable Law between the date of this Agreement and the Closing Date;
(vi) Taxes imposed on Buyer Parent or its Affiliates after the Closing arising out of (i) any limitation or disallowance under Section 382 or 383 of the Code of any items of deduction or loss arising out of the Retained Hedge Losses or (ii) any Taxes of any other Person imposed on the Company Buyer Parent or its Affiliates (including the Company) not being able to utilize or Buyer recognize losses or deductions arising from the Retained Hedge Losses after the Closing as a result of the Company being a disregarded entity post-Closing) (A) acceleration into current deductions or losses of the Retained Hedge Losses as a result of the transactions contemplated by this Agreement. provided, however, (i) Seller shall not be liable for any written Tax sharing or Tax allocation agreement in effect on or prior liability to the Closing Dateextent such Tax liability is taken into account in Total Adjusted Book Value and (ii) in the event Buyer Parent elects for the reinsurance of the FA Business to occur after the Closing, (B) the transactions contemplated by the FA Business Reinsurance Agreements shall not be treated as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701Pre-3 or any similar provision of state, local or foreign Legal Requirements;Sale Transactions.
(iiib) Buyer Parent agrees to indemnify and hold harmless the portion of Seller Indemnified Persons from and against any Transfer and all liabilities for Taxes that are the responsibility of Sellers not subject to indemnification by Seller pursuant to Section 7.2(d); or
(iv8.1(a) any breach of to the extent resulting from or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.arising out of:
(i) If a written claim is made by Taxes imposed on any Acquired Company for all Post-Closing Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.Periods;
(ii) Seller Representative Taxes arising out of a breach of any covenant of Buyer Parent under this Article VIII.
(c) For purposes of this Agreement, Taxes for a Straddle Period shall have be allocated between the right Pre-Closing Tax Period and the Post-Closing Tax Period in the following manner:
(i) in the case of Taxes based on or measured by income, gain, or receipts, or related to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel the actual or deemed sale or transfer of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed property, or which are withholding Taxes, such Taxes shall be allocated based on an interim closing of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense books as of the claim actively and diligently, and end of the Closing Date; and
(Dii) if in the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for case of Taxes calculated on a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free periodic basis, the full portion of such Taxes allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Indemnified Taxpayer Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is requested to pay. If any the number of days in the portion of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer Straddle Period ending on the Closing Date and the applicable Indemnified Taxpayer may defend against, and consent to denominator of which is the entry number of any judgment or enter into any settlement with respect to, days in the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2entire Straddle Period.
(iii) Seller Representative shall not be entitled With respect to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyerpartnership interest owned by an Acquired Company through a separate account, the settlement ofitems of income, gain, deduction, or an adverse judgment with respect toloss arising from such partnership interest shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in a manner that matches, as closely as reasonably practicable, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement changes to the contrary, the indemnification obligations corresponding separate account reserves pursuant to Section 817 of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitationsCode. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before other partnership interest owned by an Acquired Company, the end items of the applicable statute of limitationsincome, an Indemnified Taxpayer gain, deduction, or loss arising from such partnership interest shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period on or before a ratable basis consistent with the ninetieth (90th) day after the Indemnified Taxpayer’s receipt principles of a written assertion of the claim by the Tax AuthoritySection 8.1(a)(c)(ii).
(div) Sellers, In the event Buyer Parent elects for the reinsurance of the FA Business to occur after the Closing on the one handClosing Date, the Tax consequences of such transactions shall be allocated to the Post-Closing Tax Period. Notwithstanding any other provision of this Agreement, the Seller Indemnified Persons shall not be liable for (and Buyer, Buyer Parent shall indemnify the Seller Indemnified Persons against) any Taxes resulting from any transaction or event that is outside the ordinary course of business and occurs after the Closing but on the other handClosing Date, shall divide evenly unless such transaction or event is initiated by Seller or either Acquired Company before the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with Closing or occurs pursuant to the terms of this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationAgreement.
Appears in 1 contract
Samples: Master Transaction Agreement (Voya Financial, Inc.)
Indemnification for Taxes. (a) Seller Parties shallSubject to the limitations set forth in Section 9.1, jointly the Owners shall severally (in accordance with each Owner’s Proportionate Share) indemnify and severally, indemnify Buyer hold harmless Parent and its Affiliates, including, after the Closing, the Company Surviving Corporation (each herein sometimes referred to as an “Indemnified Taxpayer”), ) against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Losses”) resulting from:
(i) A claim by any taxing authority for (A) except for Taxes reflected in the calculation of Closing Date Working Capital, any Taxes of the Company or the Subsidiary allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date (subject to the provisions set forth below with respect to any Straddle Period), and (B) any Taxes of the Company or the Subsidiary as a result of the applicability of Treas. Reg. §1.1502-6 or similar provisions of foreign, state or local Tax law for Taxes of the any other corporation affiliated with the Company or any Company Subsidiary on or prior to the Closing Date;
(ii) A claim by any taxing authority for any Taxes arising from or occasioned by the consummation of the Merger pursuant to this Agreement; or
(iii) Any misrepresentation or breach of any other Person imposed on representation, warranty or obligation set forth in this Article VIII. In the Company case of Taxes that are payable with respect to any Taxable period that includes (or Buyer as but does not end on) the Closing Date (a result of the Company being a disregarded entity post-Closing) “Straddle Period”):
(A) the parties hereto shall treat the Closing Date as a result the last day of such period (i.e., the parties hereto shall “close the books” effective as of 11:59 p.m. on such date) and shall elect to do so if permitted by applicable law, and the parties acknowledge and agree that any written Tax sharing payments made under Section 2.5 or Tax allocation agreement in effect on or Section 2.7(b) shall be deemed to have been made immediately prior to the Closing Date, Closing; and
(B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer such Tax that is allocable to the portion of the taxable period ending on the Closing Date shall be, (a) in the case of Taxes that are based on income or receipts determined under the responsibility closing of Sellers the books method and (b) in the case of other Taxes, deemed to be the amount of such Taxes for the entire Straddle Period (after giving effect to amounts which may be deducted from or offset against such Taxes with respect to such periods under the relevant Tax law) (or in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of days in the Straddle Period ending on the Closing Date (including the Closing Date) and the denominator of which is the number of days in the entire Straddle Period. Any credit or refund resulting from an overpayment of Taxes for a Straddle Period shall be prorated based upon the method employed in this paragraph (B).
(b) Subject to the resolution of any Tax contest pursuant to Section 7.2(d8.2(c); or, upon notice from Parent to Owners’ Representative that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.2(a), each Owner shall thereupon pay to the Indemnified Taxpayer such Owner’s Proportionate Share of the amount that will indemnify and hold the Indemnified Taxpayer harmless from such Loss, subject to Section 9.1(f).
(ivc) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Owners’ Representative in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Merger Agreement (Roadrunner Transportation Systems, Inc.)
Indemnification for Taxes. (a) The Seller Parties shall, jointly and severally, hereby agrees to indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements (all herein referred to as “Tax Losses”) resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company allocable to (i) for any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of or (ii) for any period that begins on or before and ends after straddles the Closing Date;
, the allocable portion of such period ending on the Closing pursuant to the final sentence of Section 8.1(l) and (iiB) any Taxes of any other Person imposed on corporation that is or was a member of an Affiliated Group of which the Company is or was a member (or Buyer as a result of the Company being a disregarded entity post-Closingi) (A) as a result of for any written Tax sharing or Tax allocation agreement in effect period ending on or prior to the Closing Date, Date or (Bii) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to for any period that straddles the Closing Date), or (C) by reason the allocable portion of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership such period ending on the Closing Date pursuant to Treasury Regulation the final sentence of Section 301.7701-3 8.1(l);
(ii) A claim by any taxing authority for any Taxes arising from or any similar provision occasioned by the sale of state, local or foreign Legal Requirementsthe Company’s capital stock pursuant to this Agreement;
(iii) A claim for any Taxes resulting from the portion of 338(h)(10) Election or any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d)comparable election under state or local Tax law; or
(iv) any Any misrepresentation or breach of or failure to perform any representation, warranty, covenant warranty or agreement obligation set forth in this Agreement relating Article VIII.
(b) The Buyer hereby agrees to indemnify Seller and its Affiliates against, and agrees to protect, save and hold harmless each from, any Tax Loss resulting from a claim by any taxing authority for (A) any Taxes of the Company (i) for any period beginning after the Closing Date or (ii) for any period that straddles the Closing Date, the allocable portion of such period beginning after the Closing pursuant to the final sentence of Section 8.1(m) hereof and (B) any Taxes of any corporation that is a member of an Affiliated Group of which the Company is a member (i) for any period beginning after the Closing Date or (ii) for any period that straddles the Closing Date, the allocable portion of such period beginning after the Closing Date pursuant to the final sentence of Section 8.1(l).
(c) Subject to the resolution of any Tax Returnscontest pursuant to Section 8.2(c), upon notice from one party hereto (the “Indemnified Taxpayer”) to the other (the “Indemnifying Taxpayer”) that an Indemnified Taxpayer is entitled to an indemnification payment for a Tax Loss pursuant to Section 8.2(a) or (b), as applicable, the Indemnifying Taxpayer shall thereupon pay to the Indemnified Taxpayer an amount that, net of any Taxes imposed on the Indemnified Taxpayer with respect to such payment, will indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Indemnifying Taxpayer in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of that the indemnifying party party’s rights or ability to defend are actually materially prejudiced.
(ii) Seller Representative The Indemnifying Taxpayer shall have the right to defend the Indemnified Taxpayer against any such claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s its choice reasonably satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed of the status and progress Indemnifying Taxpayer notifies the Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given written notice of such claim that the Indemnifying Taxpayer will indemnify the Indemnified Taxpayer from and related proceedingsagainst the entirety of any Tax Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, Sellers the Indemnifying Taxpayer shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay. , and (C) the Indemnifying Taxpayer conducts the defense of the claim in a commercially reasonable manner.
(iii) Subject to the provisions of paragraph (ii) above, the Indemnifying Taxpayer shall be entitled to prosecute such contest to a determination in a court of initial jurisdiction, and if the Indemnifying Taxpayer shall reasonably request, to a determination in an appellate court.
(iv) The Indemnifying Taxpayer shall not be entitled to settle or to contest any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the good faith judgment of the Indemnified Taxpayer and its accountant or attorney, to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) Upon actual receipt of a refund by the Indemnified Taxpayer of an amount advanced by the Indemnifying Taxpayer pursuant to paragraph (ii)(B) above, the Indemnified Taxpayer shall promptly pay to the Indemnifying Taxpayer any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority).
(vi) If any of the conditions in clauses Section 8.2(d)(ii) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or Seller Representative the Indemnifying Taxpayer in connection therewith), (yB) Sellers the Indemnifying Taxpayer will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’, accountants’ and experts’ fees and disbursements) and (zC) Sellers the Indemnifying Taxpayer will remain responsible for any Damages Buyer or any other Tax Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.28.2.
(iiivii) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Indemnifying Taxpayer under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party the Indemnifying Taxpayer by providing written notice to Seller Representative the Indemnifying Taxpayer on or before the ninetieth (90th) 60th day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(dviii) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by Seller when due, and Seller Representative will will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxestransfer, anddocumentary, if required by applicable Legal Requirementssales, Buyer willuse, and will cause its Affiliates tostamp, join in the execution of any such Tax Returns registration and other documentationTaxes and fees.
Appears in 1 contract
Samples: Stock Purchase Agreement (Empire Financial Holding Co)
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after Notwithstanding any provision to the Closingcontrary contained in this Agreement, the Company (each herein sometimes referred Seller agrees to as an “Indemnified Taxpayer”)indemnify, against, and protect, save defend and hold harmless each Indemnified Taxpayer fromParent, any its Affiliates and all Damages directly resulting from:
the successors to the foregoing (and their respective shareholders, officers, directors, employees and agents) on an after-tax basis against (i) all Taxes, losses, claims and expenses resulting from, arising out of, or incurred with respect to, any claims that may be asserted by any party based upon, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 2.13 (Taxes) of this Agreement to be true and correct as of the Closing Date; (ii) all Taxes imposed on or asserted against the properties, income or operations of the Acquired Business, for which the Seller or any of its Subsidiaries may be liable, for all Pre-Closing Periods; (iii) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which Seller or any of its Subsidiaries (or any predecessor of any of the Company allocable to any period ending foregoing) is or was a member on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (Seller or Buyer any of its Subsidiaries as a result of the Company being a disregarded entity postprovisions of Treasury Regulations Section 1.1502-Closing) (A) as a result 6 or the analogous provisions of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d)law; or
and (iv) all state, local and foreign sales, use or similar Taxes and related losses, claims and expenses resulting from, arising out of, or incurred in connection with, any breach claim that may be asserted, directly or indirectly, by any taxing authority or by any third party (including any claim for indemnification) based on, attributable to, or resulting from, the maintenance or operation by the Seller, any of its affiliates or failure to perform customers, of any representatione-commerce website or related business operations or activities (including the ownership, warrantytransportation or handling of any goods, covenant the delivery of any products or agreement in this Agreement relating to Taxes services or Tax Returnsany other order fulfillment activities).
(ib) If In the case of any taxable period that includes but does not end on the Closing Date (a written claim “Straddle Period”), the amount of any Taxes based on or measured by income or receipts of the Acquired Business for the Pre-Closing Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes of the Seller and its Subsidiaries that relate to the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is made by any Tax Authority that, if successful, would result the number of days in the indemnification taxable period ending on the Closing Date and the denominator of an Indemnified Taxpayer, which is the Indemnified Taxpayer shall promptly notify Seller Representative in writing number of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense days in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerStraddle Period.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations The aggregate liability of the Seller Parties under this Article VI pursuant to Section 6.7(a)(iv) shall survive not exceed the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityTotal Transaction Value.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallThe Company and the Shareholders hereby jointly and severally agree to indemnify, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company Affiliates (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys', accountants' and experts' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company (other than any Taxes specifically assumed by Buyer pursuant to Section 1.1(c)) allocable to any taxable period ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable or that relates to that portion of any taxable period on or before the pre-Closing portion Date of any period that begins on or before and ends after the Closing Date, (B) any Taxes of the Company and (C) any Taxes of any corporation that is or was a member of an Affiliated Group of which the Company was or is a member;
(ii) A claim by any taxing authority for any Taxes of any other Person imposed on arising from or occasioned by the Company (or Buyer as a result sale of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Company's Assets pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d8.2(c); or
(iv) , upon notice from Buyer to the Company that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.2(a), the Company shall thereupon pay to the Indemnified Taxpayer an amount that, net of any breach of or failure Taxes imposed on the Indemnified Taxpayer with respect to perform any representationsuch payment, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnswill indemnify and hold the Indemnified Taxpayer harmless from such Loss.
(i) If a written claim is shall be made by any Tax Authority taxing authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative the Company in writing of such fact; provided provided, however, that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative The Company shall have the right to defend the Indemnified Taxpayer against any such claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s its choice satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed of the status and progress Company notifies the Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given notice of such claim that the Company will indemnify the Indemnified Taxpayer from and related proceedingsagainst the entirety of any Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the claim, (B) Buyer and Bxxxx’s counsel are allowed the Company provides the Indemnified Taxpayer with evidence acceptable to participate at Bxxxx’s expense in such the Indemnified Taxpayer that the Company will have the financial resources to defend against the claim and related proceedingsfulfill his indemnification obligations hereunder, (C) Seller Representative’s if requested by the Indemnified Taxpayer, the Company provides to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel with respect satisfactory to such claim is approved by Buyer the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlythat contest, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers the Company shall have advanced to such Indemnified the Xndemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (E) the Company conducts the defense of the claim actively and diligently.
(iii) Subject to the provisions of paragraph (ii) above, the Company shall be entitled to prosecute such contest to a determination in a court of initial jurisdiction, and if the Company shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, the Company shall provide to the Indemnified Taxpayer an opinion, in form and substance satisfactory to the Indemnified Taxpayer, of counsel satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(iv) The Company shall not be entitled to settle or to contest any claim relating to Taxes if the settlement of, or an adverse judgment with respect to, the claim would be likely, in the good faith judgment of the Indemnified Taxpayer, to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit) or to take a position that, if applied to any taxable period ending after the Closing Date, would be adverse to the interest of the Indemnified Taxpayer or any Affiliate of the Indemnified Taxpayer.
(v) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Company pursuant to paragraph (ii)(D) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to the Company any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayers with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before such time as the Company shall have made all payments or indemnities then due with respect to Indemnified Taxpayer pursuant to this Article VIII.
(vi) If any of the conditions in clauses Section 8.2(c)(ii) above are or become unsatisfied, (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or Seller Representative the Company in connection therewith), (yB) Sellers the Company will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable including, without limitation, attorneys’', accountants’ ' and experts’ ' fees and disbursements) and (zC) Sellers the Company will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.28.2.
(iiid) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Company and the Shareholders under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority taxing authority asserts a claim within ninety (90) 90 days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party the Company by providing written notice to Seller Representative the Company on or before the ninetieth (90th) 90th day after the Indemnified Taxpayer’s 's receipt of a written assertion of the claim by the Tax Authoritytaxing authority.
(de) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”)shall be paid by the Company when due, and Seller Representative will the Company will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxestransfer, documentary, sales, use, stamp, registration and other Taxes and fees, and, if required by applicable Legal Requirementslaw, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (ai) Seller Parties shall, jointly and severally, Sellers shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each the Purchaser Indemnified Taxpayer from, any Parties from and against (A) all Damages directly resulting from:
(i) any Taxes of the any Acquired Company allocable to for any period ending on Pre-Closing Tax Period or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before Straddle Period, determined in accordance with Section 5.14(c), including, but not limited to, all income and ends after the Closing Date;
(ii) any capital gains Taxes of any other Person imposed on Acquired Company for any Pre-Closing Tax Period or the Company (or Buyer as a result of the Company being a disregarded entity postpre-Closing) (A) as a result Closing portion of any written Tax sharing or Tax allocation agreement Straddle Period, determined in effect on or prior accordance with Section 5.14(c), attributable to the Closing DateRestructuring Transactions and the transactions described in the first sentence of Section 5.8(a) and in Section 5.8(b) and Section 5.13, (B) all Taxes required to be paid by any Acquired Company by reason of such Acquired Company having been a member of an affiliated, consolidated, unitary, or similar group prior to the Closing, 48 including pursuant to Treasury Regulation section 1.1502-6 or any comparable state, local or foreign Law, (C) all Taxes of any Person required to be paid by any Acquired Company as a transferee or successorsuccessor pursuant to applicable Law, or otherwise under applicable Legal Requirements (which in either case where the liability of such Acquired Company for such Taxes described in this clause (B) relate is attributable to an event or transaction occurring before the Closing, including a merger or reorganization involving such Acquired Company, (D) except as otherwise provided by this Agreement or any other Contract, all Taxes of Sellers or Affiliates of Sellers (other than the Acquired Companies), (E) the breach of any representation or warranty contained in Section 3.9, (F) all income and capital gains Taxes imposed on any Acquired Company or prior Purchasers resulting from the sale of the Company Shares pursuant to this Agreement (including those attributable to any deemed or indirect transfer of an interest in any Acquired Company triggered by such sale of the Company Shares), (G)the Peruvian ITF tax (“Impuesto a las Transacciones Financieras”) that may be imposed on any amounts to be paid by Purchasers into Sellers’ Peruvian bank accounts (if any), (H) Taxes attributable to any breach by any Seller under this Section 5.14; and (I) any Damages related to the Closing Date)foregoing; provided, or (C) by reason of being a memberhowever, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership Sellers shall not have any obligation to indemnify the Purchaser Indemnified Parties pursuant to Treasury Regulation this Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii5.14(i) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party such Taxes are actually materially prejudicedattributable to any breach by any Purchaser under this Agreement.
(ii) Purchasers shall indemnify and hold harmless the Seller Representative shall have the right to defend Indemnified Parties from and against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed all Taxes of any Acquired Company for any Post-Closing Tax Period or the status and progress post-Closing portion of such claim and related proceedingsany Straddle Period, determined in accordance with Section 5.14(c); (B) Buyer and Bxxxx’s counsel are allowed Taxes attributable to participate at Bxxxx’s expense in such claim and related proceedings, any breach by any Purchasers under this Section 5.14; (C) Seller Representative’s counsel with respect the Peruvian ITF tax (“Impuesto a las Transacciones Financieras”) that may be imposed on any amounts to such claim is approved be paid by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, Sellers into Purchasers’ Peruvian bank accounts (if any); and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent Damages related to the entry of foregoing; provided, however, Purchasers shall not have any judgment or enter into any settlement with respect to, obligation to indemnify the claim in any manner it may deem appropriate (and neither Buyer nor any Seller Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (yParties pursuant to this Section 5.14(i) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled such Taxes are attributable to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties breach by Sellers under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityAgreement.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallTo the extent not accrued as a liability in the Closing Balance Sheet, Sellers, jointly and severally, indemnify Buyer and its Affiliates, including, after the Closing, the Company severally (reserving unto each herein sometimes referred to as an “Indemnified Taxpayer”other any rights of contribution), againstshall indemnify Purchaser, Company and protect, save their respective Affiliates and hold each of them harmless each Indemnified Taxpayer from, any (on an after-Tax basis) from and all Damages directly resulting from:
against (i) any and all Taxes of the Company allocable to (or any predecessor company thereto or any Subsidiary) in respect of any period ending on or before the Closing Date, or in the case of a period that includes but does not end at the Closing Date, the portion thereof prior to and including the Closing Date or(such period or portion, as provided in Section 7.3(ba “Pre-Closing Period”), allocable except for any Taxes imposed pursuant to Section 1374 of the Code (and any analogous state and local provisions) resulting from the sale of the Property pursuant to the pre-Closing portion of any period that begins on or before Purchase and ends after the Closing Date;
Sale Agreement; (ii) any and all Taxes for which the Company may be or become liable by reason of (1) being a member of an affiliated, combined, consolidated, or unitary group at any time prior to the Closing, including under Treasury Regulation Section 1.1502-6 or any analogous or similar provision under any state, local or foreign Tax Law or (2) being a successor-in-interest or transferee of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), Closing; or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion effect of any Transfer breach of a representation in Section 5.12 or covenant in Section 12.2 or other covenant with respect to Taxes, in each case, all reasonable costs (including reasonable attorneys’ fees and related disbursements and expenses) incurred by Company, Purchaser or any of their Affiliates in connection therewith or in enforcing its rights hereunder.
(b) The indemnities provided for in this Section 10.2 (i) shall apply notwithstanding any investigation made by Purchaser in connection with the transactions contemplated by this Agreement or its receipt or review of or comments on, any Return, (ii) shall be separate and independent of any other indemnity provision contained herein and (iii) anything in this Agreement to the contrary notwithstanding, shall survive until three (3) months after the expiration of the applicable statute of limitations, including extensions or waivers thereof. The provisions of Sections 10.5 and 10.6 shall not apply to claims for indemnification under this Section 10.2.
(c) Sellers shall promptly forward to Purchaser a copy of all written communications from a Tax authority received by any of the Sellers that relates to Company, its income, assets, payroll or operations, including any notice of a Tax Proceeding with respect to the Taxes that are of the responsibility Company. Purchaser shall promptly forward to Sellers’ Representative a copy of all written communications from a Tax authority received by it for which the Sellers may be liable under this Section 10.2, including any notice of a Tax Proceeding.
(d) Purchaser agrees not to settle or make any payment of an amount claimed to be due with respect to a proposed adjustment or undertake the defense or control of any Tax Proceeding for which Sellers may be liable under this Section 10.2 for at least fifteen (15) days after giving notice to Sellers pursuant to Section 7.2(d10.2(c); or
. If, within such fifteen (iv) any breach of or failure to perform any representation15)-day period, warranty, covenant or agreement in this Agreement relating to Taxes Purchaser receives a written request from Sellers that the proposed adjustments or Tax Returns.
(i) If Proceeding will be contested or defended, which includes a written statement of a reasonable basis in fact and in law for such contest, which includes an acknowledgement that the claim or Tax Proceeding is made by any Tax Authority thatone to which the indemnity herein applies, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative Sellers shall have the right thereafter to defend against any claim under subsection (b)(i) at Sellers’ expense undertake, conduct and with control, through counsel of Seller Representative’s choice so long its own choosing and at its expense, the settlement and defense of such matter, and agree to keep Purchaser informed as (A) Buyer is kept reasonably informed to the progress of the status and progress of such claim and related proceedingsmatter, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedingsprovided, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlyhowever, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, that Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or not enter into any settlement with respect to, the claim in or compromise of any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes such matter without the prior written consent of BuyerPurchaser, which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned. Purchaser shall reasonably cooperate with Seller in connection with any such contest or Tax Proceeding. Notwithstanding the foregoing, Purchaser shall have the right thereafter to undertake, conduct and control, through counsel of its own choosing and at its expense, the settlement and defense of any matter that relates to a Straddle Period, and agree to keep Sellers’ Representative informed as to the progress of the matter, provided, however, that Purchaser shall not enter into any settlement or compromise of any such matter which settlement or compromise would result in an indemnification obligation of Sellers under this Agreement without prior written consent of Sellers’ Representative, which consent shall not be unreasonable withheld, delayed or conditioned. Sellers’ Representative shall reasonably cooperate with Purchaser in connection with any such contest or Tax Proceeding.
(e) If Company (any successor thereto), Purchaser or their Affiliates are subject to any Taxes in any taxable period (or portion thereof) after the Closing Date with respect to the Oil Spill Claims (including any deemed or constructive receipt of the proceeds of such Oil Spill Claims), then Sellers hereby agree to indemnify Company (any successor thereto), Purchaser and their Affiliates from and against any and all incremental Taxes, if any, incurred by Company (any successor), Purchaser or their Affiliates related to the Oil Spill Claim. The Company shall also be permitted to reduce the amount of the distribution to be made under Section 8.1(e) to satisfy such indemnification obligation of Sellers. For example, if, in a taxable period, upon the good faith judgment receipt of Buyerproceeds of Oil Spill Claims, the settlement ofCompany must recognize the proceeds in its income for Tax purposes but is allowed a full deduction for Tax purposes for the distribution of such proceeds under Section 8.1 and, or an adverse judgment with respect toas a result, neither the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contraryCompany, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for Purchaser nor their Affiliates incur any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxesthe Oil Spill Claims for that taxable period, andthen the Sellers would not have any obligations under this Section 10.2(e) for that taxable period; conversely, if required the Company, Purchaser or their Affiliates incurs such a Tax, the Company shall be permitted to reduce the amount of the distribution to be made under Section 8.1 by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution amount of any such Tax Returns and other documentationand/or seek indemnification from the Sellers, as the case may be.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallNotwithstanding any provision to the contrary contained in this Agreement, jointly and severallyCompany Stockholders agree to indemnify, indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save defend and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
the Parent Indemnitees on an after-tax basis against (i) all Taxes, losses, claims and expenses resulting from, arising out of, or incurred with respect to, any claims that may be asserted by any party based upon, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 3.12 (Taxes) of this Agreement to be true and correct as of the Closing Date; (ii) all Taxes imposed on or asserted against the properties, income or operations of the Company allocable or its Subsidiaries, or for which the Company or any of its Subsidiaries may otherwise be liable, for all Pre-Closing Periods to the extent such Taxes are not reflected in the Company Financial Statements; (iii) all Taxes of any period ending member of an affiliated, consolidated, combined or unitary group (“Group”) of which Company or any of its Subsidiaries (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer any of its Subsidiaries as a result of the Company being a disregarded entity postprovisions of Treasury Regulations Section 1.1502-Closing) (A) as a result 6 or the analogous provisions of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returnslaw.
(ib) If In the case of any taxable period that includes but does not end on the Closing Date (a written claim “Straddle Period”), the amount of any Taxes based on or measured by income or receipts of the Company and its Subsidiaries for the Pre-Closing Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes of the Company and its Subsidiaries that relate to the Pre-Closing Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is made by any Tax Authority that, if successful, would result the number of days in the indemnification taxable period ending on the Closing Date and the denominator of an Indemnified Taxpayer, which is the Indemnified Taxpayer shall promptly notify Seller Representative in writing number of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense days in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified TaxpayerStraddle Period.
(c) Notwithstanding anything in this Agreement Parent shall prepare or cause to be prepared and file or cause to be filed all Returns for the Company and its Subsidiaries that are filed after the Closing Date. Any such Returns that include periods beginning prior to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer Date shall be treated as having provided timely notice prepared, to the extent permitted by applicable law, on a basis consistent with the last previous such Returns, unless there is no reasonable basis for such position. Parent shall permit Representative to review and comment on each such Return prior to filing and shall make such revisions to such Seller Party Returns as are reasonably requested by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax AuthorityRepresentative.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shallshall be responsible for, jointly and severally, shall indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:all
(i) any Income Taxes of the Company allocable imposed on Southeast or Southeast's interest in Partnership, and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys' fees, and expenses arising therefrom, relating to any period (A) taxable periods or portions thereof ending on or prior to the Closing Date or, as provided in Section 7.3(b), allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date;
(ii) any Taxes of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Income Taxes described in this clause (B) relate to an event or transaction occurring on or prior to resulting from the Closing Date), or (C) by reason application of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701Treas. Reg. ss.
1. 1502-3 6 or any similar provision of comparable state, local or foreign Legal Requirements;
tax law attributable to Tesoro Parent, or any corporation or entity which is or has been affiliated with or been part of a combined, unitary or affiliated group with Tesoro Parent, and (iiiC) the portion of the Income Taxes for any Transfer Straddle Period (as defined in subsection 16.1(e)) allocable to Sellers with respect to either Southeast or Southeast's interest in the Partnership under subsection 16.2(e) and (ii) all Other Taxes that are imposed on Southeast or Southeast's interest in the responsibility of Sellers pursuant Partnership relating to the taxable periods or portions thereof ending on or before the Effective Time (allocated as described in Section 7.2(d13.3); or
(iv) provided, Sellers shall not be responsible for, and shall not be required to indemnify Buyer against, any breach of or failure Taxes to perform any representation, warranty, covenant or agreement the extent that such Taxes do not exceed the accrued liability for Taxes on the Balance Sheets which are taken into account in this Agreement relating to Taxes or Tax Returnsdetermining the Working Capital.
(b) Buyer shall be responsible for and shall indemnify Sellers against all (i) If a written claim is made by any Tax Authority that, if successful, would result Income Taxes imposed upon Southeast or Southeast's interest in the indemnification Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive, or other), reasonable attorneys' fees and expenses arising therefrom, relating to (A) taxable periods beginning after the Closing Date or (B) the portion of an Indemnified Taxpayerthe Income Taxes for any Straddle Period which are allocable to Buyer under subsection 16.2(e), and (ii) except as provided in Section 13.3 and in this Article XVI, all Other Taxes imposed upon Southeast or Southeast's interest in the Indemnified Taxpayer Partnership and all Liabilities, losses, costs, fines, penalties, damages (actual, punitive or other), reasonable attorneys fees and expenses arising therefrom arising in or relating to taxable periods or portions thereof beginning after the Effective Time (allocated as described in Section 13.3).
(c) Each Party shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights the other Party of the Indemnified Taxpayer except commencement of any demand, claim, audit, examination, Action or other proposed change or adjustment by any Taxing Authority concerning any Tax which could give rise to a claim for indemnity pursuant to subsection 16.1(a) or subsection 16.1(b), as the extent case may be (each a "Tax Claim"). Such notice shall contain factual information describing the rights asserted Tax Claim in reasonable detail and shall include copies of the indemnifying party are actually materially prejudicedany notice or other document received from any Taxing Authority in respect of any such asserted Tax Claim.
(iid) Seller Representative Seller, at its own expense, shall have the sole right to represent Southeast and the Partnership's interests in any Tax Claim for Taxes for which it is indemnifying Buyer against and to employ counsel of its choice. Buyer shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Action at its own expense. Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and not consent to the entry of any judgment or enter into any settlement with respect to, that reasonably would be expected to have an adverse effect on the claim Income Taxes of Southeast or Southeast's interest in the Partnership in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and period after the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes Closing Date without the consent of Buyer's consent, which consent shall not be unreasonably withheld. Buyer's consent shall in no way reduce any indemnification due to Buyer under subsection 16.1(a). If Seller elects to control the defense, conditioned compromise or delayedsettlement of any Tax Claim, if, Seller shall keep Buyer informed of the progress and disposition of such Tax Claim. Buyer shall handle any other Tax Claims of Southeast or Southeast's interest in the good faith judgment of BuyerPartnership, the and Buyer shall be entitled to defend, compromise or settle such Tax Claims in its sole discretion without in any way reducing its rights to indemnification under subsection 16.1(a), unless any such settlement ofwould give rise to a tax claim against Seller, or an adverse judgment with respect toand in such event such settlement shall be subject to Seller's consent, the claim would reasonably which shall not be expected to adversely affect any Indemnified Taxpayerunreasonably withheld.
(ce) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for taxable period of Southeast or the Partnership beginning before and ending after the Closing Date (a "Straddle Period"), Buyer shall control, and Seller, at its own expense, shall have the right to participate in, the defense and settlement of any Tax for which a Tax Authority asserts a claim within ninety (90) days before Claim and each Party shall cooperate with the end other Party and there shall be no settlement or closing or other agreement with respect thereto without the consent of the applicable statute other Party, which consent shall not be unreasonably withheld; provided, that if either Party shall refuse (the "Refusing Party") to consent to any settlement, closing or other agreement agreed to by the relevant Taxing Authority with respect to any such Tax Claim that the other party (the "Accepting Party") proposed to accept (a "Proposed Settlement"), then (i) the Accepting Party's Liability with respect to the subject matter of limitations, an Indemnified Taxpayer the Proposed Settlement shall be treated as having provided timely notice limited to the amount that such Seller Party by providing written notice to Seller Representative on or before Liability would have been if the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one handProposed Settlement had been accepted, and Buyer, on (ii) the other hand, Refusing Party shall divide evenly the financial responsibility be responsible for all transfer, documentary, sales, use, stamp, registration Liabilities and other such Taxes and fees (including any penalties and interest) expenses incurred or imposed thereafter in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution contest of any such Tax Returns and other documentationClaim to the extent that the final settlement is more than the Proposed Settlement.
Appears in 1 contract
Indemnification for Taxes. Except as provided in Section 9.11 and except to the extent that such Taxes (a) Seller Parties shall, jointly and severally, indemnify Buyer and its Affiliates, including, after were deducted in the Closing, the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), against, and protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
(i) any Taxes calculation of the Company allocable to any period ending on Closing Date Working Capital or were paid prior to the Closing Date or, or (b) are incurred as provided in Section 7.3(b), allocable to the pre-Closing portion a result of any period that begins on action outside the Ordinary Course of Business after the Closing effected by Purchasers or before and ends any Related Persons of any Purchaser (including the Target Companies after the Closing Date;
) or any Tax election made by Purchasers or any Related Persons of any Purchaser (including the Target Companies after the Closing Date) (other than the election described in Section 9.8 or any such election directed by or consented to by the Rockwood Sellers), the Rockwood Sellers shall indemnify and hold harmless the Purchasers and their Representatives, shareholders and their Related Persons (the “Purchaser Indemnified Persons”), and will pay the Purchaser Indemnified Persons for: (i) all Taxes (and, for purposes of this Section 9.7 any Damages resulting from, arising from or in connection with, or incurred with respect to, any claims that may be asserted by any Person based on, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 3.12 to be true and correct in all respects as of the date of this Agreement and as of the Closing Date shall constitute Taxes) imposed on the Target Companies for all Pre-Closing Periods, (ii) any all Taxes of any other Person imposed on the Company Target Companies with respect to income of the Rockwood Sellers or any of their Related Persons (or Buyer other than the Target Companies) as a result of the Company being a disregarded entity postprovisions of United States Treasury Regulations Section 1.1502-Closing) (A) as a result 6 or the analogous provisions of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
Requirement, (iii) all Taxes imposed on the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult withTarget Companies, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall Target Companies may be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellersliable, on the one handsale of the Purchased IP and the Reorganization and (v) any Taxes imposed on the deemed sale resulting from the joint election under Section 338(h)(10) of the Code to treat the sale of stock pursuant to this Agreement as an asset sale for U.S. federal income tax purposes, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration any analogous provisions of state and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentationlocal law.
Appears in 1 contract
Samples: Business Purchase Agreement (Rockwood Holdings, Inc.)
Indemnification for Taxes. (a) Seller Parties shallExcept to the extent such Taxes are accrued and specifically identified on the Closing Date Statements, jointly from and severally, indemnify Buyer and its Affiliates, including, after the Closing, Seller agrees to indemnify Purchaser and the Company (each herein sometimes referred to as an “Indemnified Taxpayer”), Acquired Companies against, and protect, save agrees to hold Purchaser and hold the Acquired Companies harmless each Indemnified Taxpayer from, any and all Damages directly resulting from:
on an After-Tax Basis, (i) any Taxes of attributable to the Company allocable Acquired Companies or their Affiliates imposed on or incurred by the Acquired Companies or their Affiliates or by Purchaser with respect to the Acquired Companies or their Affiliates and attributable to any taxable period ending on or prior to the Closing Date orDate, and the portion, determined as provided described in Section 7.3(b10.1(c), of any such Taxes for any taxable period beginning prior to the Closing Date and ending after the Closing Date which is allocable to the preportion of such period occurring prior to the Closing Date (the “Pre-Closing portion Period”); (ii) Taxes relating to any breach of a warranty or misrepresentation under Section 5.20 (without respect to any requirement contained in such representations and warranties relating to materiality); and (iii) any Loss or Taxes resulting from a breach of any period that begins of the covenants made by Seller in Sections 7.1(a)(xvii) and 7.1(a)(xviii) or Sections 10.2 through 10.10 inclusive. For the avoidance of doubt, the Taxes for which Seller is indemnifying Purchaser pursuant to this Section 10.1 shall be determined without giving effect to the purchase and sale of the Membership Units and the transactions contemplated by this Agreement.
(b) Purchaser shall be liable for, and agrees to indemnify Seller and its Affiliates against, and agrees to hold Seller and its Affiliates harmless from, on an After-Tax Basis, (i) any Taxes imposed on or before incurred by the Acquired Companies, Purchaser or Seller and ends attributable to any taxable period beginning on or after the Closing Date;
, and the portion, determined as described in Section 10.1(c), of any such Taxes for any taxable period beginning prior to the Closing Date and ending after the Closing Date which is allocable to the portion of such period occurring on or after the Closing Date (the “Post-Closing Period”); and (ii) any Loss or Taxes of any other Person imposed on the Company (or Buyer as resulting from a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;
(iii) the portion of any Transfer Taxes that are the responsibility of Sellers pursuant to Section 7.2(d); or
(iv) any breach of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer shall promptly notify Seller Representative in writing of such fact; provided that any failure to give such notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions covenants made by Purchaser in clauses Sections 10.2 through 10.10 (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewithinclusive), (y) Sellers will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in Whenever it is necessary for purposes of this Agreement to determine the contrary, the indemnification obligations portion of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end any Taxes of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to an Acquired Company or its owner for a taxable period beginning prior to and ending after the Closing Date which is allocable to the Pre-Closing Period or the Post-Closing Period, the determination shall be made (i) in the case of property, ad valorem or similar Taxes (which are not based on or measured by production), by allocating all such Transfer Taxes on a per diem basis, (ii) in the case of franchise, capital or similar Taxes (which are not based on or measured by income or profit), by allocating all such Taxes on a per diem basis, and (iii) in the case of other Taxes, and, if required by applicable Legal Requirements, Buyer will, assuming that each of the Pre-Closing Period and will cause its Affiliates to, join in the execution Post-Closing Period constitutes a separate taxable period and by taking into account the actual taxable events occurring during each such period pursuant to a closing of any such Tax Returns and other documentationthe books of the Acquired Company occurring as of the Closing Date.
Appears in 1 contract
Indemnification for Taxes. (a) Seller Parties shall, jointly and severally, InterDent hereby agrees to indemnify Buyer Purchaser and its Affiliates, including, after the Closing, the Company DCA (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, including, without limitation, attorneys', accountants' and experts' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company any Dental Practice, any Seller or (in respect of DCA Tax Periods) DCA allocable to any period ending on or prior to the Closing Date or(including any Taxes arising by reason of any election under Section 338 of the Code or any comparable provision of state, as provided in Section 7.3(b), local or foreign law) or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date, and (B) any Taxes of any of the Dental Practices, any Seller or (in respect of DCA Tax Periods) DCA or any corporation that is or was a member of an Affiliated Group of which it was or is a member;
(ii) A claim by any taxing authority for any Taxes arising from or occasioned by the sale of any other Person imposed on the Company (or Buyer as a result of the Company being a disregarded entity post-Closing) (A) as a result of any written Tax sharing or Tax allocation agreement in effect on or prior to the Closing Date, (B) as a transferee or successor, or otherwise under applicable Legal Requirements (which Taxes described in this clause (B) relate to an event or transaction occurring on or prior to the Closing Date), or (C) by reason of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified as a partnership DCA's capital stock pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of state, local or foreign Legal Requirements;this Agreement; or
(iii) the portion Any misrepresentation or breach of any Transfer Taxes that are representation, warranty or obligation set forth in this Article VIII.
(b) Subject to the responsibility resolution of Sellers any Tax contest pursuant to Section 7.2(d8.03(c); or
(iv) any breach of or failure , upon notice from Purchaser to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax Returns.
(i) If a written claim is made by any Tax Authority that, if successful, would result in the indemnification of InterDent that an Indemnified TaxpayerTaxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.03(a), InterDent shall thereupon pay to the Indemnified Taxpayer shall promptly notify Seller Representative in writing an amount that, net of such fact; provided that any failure to give such notice will not waive any rights of Taxes imposed on the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative shall have the right to defend against any claim under subsection (b)(i) at Sellers’ expense and with counsel of Seller Representative’s choice so long as (A) Buyer is kept reasonably informed of the status and progress of such claim and related proceedings, (B) Buyer and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedings, (C) Seller Representative’s counsel with respect to such claim is approved by Buyer in its reasonable discretion payment, will indemnify and Seller Representative conducts the defense of the claim actively and diligently, and (D) if the applicable Indemnified Taxpayer is requested to pay the Tax claimed and sue for a refund, and if so requested by Bxxxx, Sellers shall have advanced to such Indemnified Taxpayer, on an interest free basis, the full amount such Indemnified Taxpayer is requested to pay. If any of the conditions in clauses (A) through (D) above is or becomes unsatisfied, then (x) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim in any manner it may deem appropriate (and neither Buyer nor any Indemnified Taxpayer need consult with, or obtain any consent from, Sellers or Seller Representative in connection therewith), (y) Sellers will reimburse Buyer and hold the Indemnified Taxpayer promptly and periodically for the costs of defending against the claim (including reasonable attorneys’, accountants’ and experts’ fees and disbursements) and (z) Sellers will remain responsible for any Damages Buyer or any other Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.2harmless from such Loss.
(iii) Seller Representative shall not be entitled to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything in this Agreement to the contrary, the indemnification obligations of the Seller Parties under this Article VI shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim by the Tax Authority.
(d) Sellers, on the one hand, and Buyer, on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution of any such Tax Returns and other documentation.
Appears in 1 contract
Samples: Purchase Agreement (Interdent Inc)
Indemnification for Taxes. (a) Seller Parties shallSubject to the provisions of the Escrow Agreement and Section 8.2(e) hereof, jointly and severally, the Stockholders hereby severally agree to indemnify Buyer and its Affiliates, including, after the Closing, the Company (each herein sometimes referred to as an “"Indemnified Taxpayer”), ") against, and agrees to protect, save and hold harmless each Indemnified Taxpayer from, any and all Damages directly claims, damages, deficiencies and losses and all expenses, without duplication, including, without limitation, reasonable attorneys', accountants' and experts' fees and disbursements (all herein referred to as "Losses") resulting from:
(i) A claim by any taxing authority for (A) any Taxes of the Company allocable to any period ending on or prior to the Closing Date or, as provided in Section 7.3(b), or allocable to the pre-Closing portion of any period that begins on or before and ends after the Closing Date ("Pre-Closing Date Period"), but only to the extent the amount thereof exceeds the accrual therefor reflected on the Closing Date Balance Sheet, (B) any Taxes of the Company or any corporation that is or was a member of an Affiliated Group of which the Company was or is a member, and (C), if the income, gains, deductions, losses or credits (or any similar item) of the Company for any Pre-Closing Date Period are adjusted but the liability of the Company for any Tax for any Pre-Closing Date Period resulting from the adjustment is reduced by reason of the utilization of any net operating loss carryover, credit carryover or similar tax benefit available to the Company as of the Closing Date;, any Taxes of the Company or of an Affiliated Group of which the Company is a member for any period ending after the Closing Date that would not have been payable but for such utilization of the net operating loss carryover, credit carryover or similar tax benefit.
(ii) A claim by any taxing authority for any Taxes arising from or occasioned by the sale of the Company's capital stock pursuant to this Agreement; or
(iii) Any misrepresentation or breach of any representation, warranty or obligation set forth in this Article VIII (each of which is to be interpreted by excluding all references to any amount or other Person item being "material").
(b) Subject to the resolution of any Tax contest pursuant to Section 8.2(e), upon notice from Buyer to the Stockholders' Representative that an Indemnified Taxpayer is entitled to an indemnification payment for a Loss pursuant to Section 8.2(a), the Stockholders thereupon shall pay to the Indemnified Taxpayer an amount that, net of any Taxes imposed on the Company (or Buyer as a result Indemnified Taxpayer with respect to that payment, is equal to the amount of the Company being a disregarded entity post-Closing) (A) as a result Loss incurred by the Indemnified Taxpayer net of any written Tax sharing benefits derived by the Indemnified Taxpayer from the payment of that Loss, so that the Indemnified Taxpayer is held harmless from that Loss on an after-Tax basis.
(c) The Buyer and the Stockholders agree to treat any indemnity payments under this Section 8.2 as an adjustment to the Purchase Price for tax purposes.
(d) Subject to Section 8.2(e) hereof (the provisions of which, as appropriate, shall apply to Buyer rather than to the Stockholders or Tax allocation agreement in effect on or prior to the Stockholders' Representative mutatis mutandis), from and after the Closing Date, Buyer shall, and shall cause the Company and its subsidiaries to, indemnify Stockholders and hold them harmless from all Losses (Bi) as a transferee attributable to Taxes of the Company or successor, or otherwise under applicable Legal Requirements any subsidiary thereof for any taxable period ending after the Closing Date (which Taxes described in this clause (B) relate except to an event or transaction occurring on or prior to the extent such taxable period began before and ended after the Closing Date), in which case Buyer's indemnity will cover only that portion of any such Taxes that are not attributable to the Pre-Closing Tax Period, (ii) attributable to Taxes relating to a breach by Buyer or the Company or any of its subsidiaries of any covenant contained in Section 8.3, or (Ciii) by reason attributable to Taxes of being a member, partner or similar owner of an equity interest in a partnership, limited liability company or other entity classified the Company that are allocable to any Pre-Closing Tax Period and reflected as a partnership tax reserve on the Closing Date Balance Sheet, reduced to the extent the amount in the Company's tax reserve has reduced any obligation of the Stockholders pursuant to Treasury Regulation Section 301.7701-3 or any similar provision of statethis Agreement, local or foreign Legal Requirements;
(iii) and, to the portion extent of any Transfer Taxes that are the responsibility of Sellers payments pursuant to this Section 7.2(d8.2(d)(iii); or
(iv) any breach , the amount in the Company's tax reserve on the Closing Date Balance Sheet shall be reduced for all purposes of or failure to perform any representation, warranty, covenant or agreement in this Agreement relating to Taxes or Tax ReturnsAgreement.
(i) If a written claim is shall be made by any taxing authority ("Tax Authority Claim") that, if successful, would result in the indemnification of an Indemnified Taxpayer, the Indemnified Taxpayer promptly shall promptly notify Seller the Stockholders' Representative in writing of such that fact; provided provided, however, that any failure to give such that notice will not waive any rights of the Indemnified Taxpayer except to the extent the rights of the indemnifying party are actually materially prejudiced.
(ii) Seller Representative The Stockholders shall have the right right, acting through the Stockholders' Representative, to defend the Indemnified Taxpayer against any claim under subsection (b)(i) at Sellers’ expense and the Tax Claim with counsel of Seller Representative’s their choice reasonably satisfactory to the Indemnified Taxpayer so long as (A) Buyer is kept reasonably informed the Stockholders' Representative notifies the Indemnified Taxpayer in writing within 15 days after the Indemnified Taxpayer has given notice of the status Tax Claim that the Stockholders will indemnify the Indemnified Taxpayer from and progress against the entirety of such claim any Losses the Indemnified Taxpayer may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Tax Claim (together with a signed written statement from each Stockholder in form and related proceedingssubstance satisfactory to Buyer confirming the indemnification obligation of that Stockholder), (B) Buyer the Stockholders' Representative provides the Indemnified Taxpayer with evidence reasonably acceptable to the Indemnified Taxpayer that the Stockholders will have the financial resources to defend against the Tax Claim and Bxxxx’s counsel are allowed to participate at Bxxxx’s expense in such claim and related proceedingsfulfill their indemnification obligations hereunder, (C) Seller Representative’s if requested by the Indemnified Taxpayer, the Stockholders' Representative provides to the Indemnified Taxpayer an opinion, in form and substance reasonably satisfactory to the Indemnified Taxpayer, of counsel with respect reasonably satisfactory to such claim is approved by Buyer the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail in its reasonable discretion and Seller Representative conducts the defense of the claim actively and diligentlythat contest, and (D) if the applicable Indemnified Taxpayer is required, or is requested by the Stockholders' Representative (and does not reasonably object to the request), to pay the Tax claimed and sue xxx for a refund, and if so requested by Bxxxx, Sellers the Stockholders shall have advanced to such the Indemnified Taxpayer, on an interest free basis, the full amount such the Indemnified Taxpayer is requested required to pay, and (E) the Stockholders' Representative, acting on behalf of the Stockholders, conducts the defense of the claim actively and diligently.
(iii) Subject to the provisions of paragraph (ii) above, the Stockholders shall be entitled to prosecute the contest to a determination in a court of initial jurisdiction, and if the Stockholders' Representative shall reasonably request, to a determination in an appellate court provided that, if requested by the Indemnified Taxpayer, the Stockholders' Representative shall provide to the Indemnified Taxpayer an opinion, in form and substance reasonably satisfactory to the Indemnified Taxpayer, of counsel reasonably satisfactory to the Indemnified Taxpayer, that there exists a reasonable basis for the Company to prevail on that appeal.
(iv) The Stockholders shall not be entitled to settle or to contest any Tax Claim if the settlement of, or an adverse judgment with respect to, the Tax Claim would be likely, in the good faith judgment of the Indemnified Taxpayer (backed by an opinion, if so requested by the Stockholders' Representative, in form and substance reasonably satisfactory to the Stockholders' Representative, of counsel reasonably satisfactory to the Stockholder's Representative), to cause the liability for any Tax of the Indemnified Taxpayer or of any Affiliate of the Indemnified Taxpayer for any taxable period ending after the Closing Date to increase (including, without limitation, by making any election or taking any action having the effect of making any election, by deferring the inclusion of any amount in income or by accelerating the deduction of any amount or the claiming of any credit, but excluding any utilization of any net operating loss carryover, credit carryover or similar tax benefit available to the Company as of the Closing Date described in Section 8.2(a)(i)(C))
(v) If, after actual receipt by the Indemnified Taxpayer of an amount advanced by the Stockholders pursuant to paragraph (ii)(D) above, the extent of the liability of the Indemnified Taxpayer with respect to the indemnified matter shall be established by the judgment or decree of a court that has become final or a binding settlement with an administrative agency having jurisdiction thereof that has become final, the Indemnified Taxpayer shall promptly pay to the Stockholders any refund received by or credited to the Indemnified Taxpayer with respect to the indemnified matter (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from the taxing authority); provided, however, that the Indemnified Taxpayer shall have been indemnified and held harmless from all Losses by reason of any indemnification payments retained by the Indemnified Taxpayer net of any Taxes imposed on the Indemnified Taxpayer with respect to indemnification payments received by the Indemnified Taxpayer or with respect to the receipt of any payment from the taxing authority. Notwithstanding the foregoing, the Indemnified Taxpayer shall not be required to make any payment hereunder before the Stockholders shall have made all payments or indemnities then due with respect to the Indemnified Taxpayer pursuant to this Article VIII.
(vi) If any of the conditions in clauses (A) through (DSection 8.2(e)(i) above is or becomes unsatisfied, then (xA) Buyer and the applicable Indemnified Taxpayer may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the claim Tax Claim in any manner it may deem reasonably appropriate (and neither Buyer nor any the Indemnified Taxpayer need not consult with, or obtain any consent from, Sellers or Seller Representative the Stockholders in connection therewith), (yB) Sellers the Stockholders will reimburse Buyer and the Indemnified Taxpayer promptly and periodically for the reasonable costs of defending against the claim Tax Claim (including including, without limitation, reasonable attorneys’', accountants’ ' and experts’ ' fees and disbursements) and (zC) Sellers the Stockholders will remain responsible for any Damages Buyer or any other Losses the Indemnified Taxpayer may suffer to the fullest extent provided in this Section 7.28.2.
(iiif) Seller Representative shall not be entitled Anything to settle or to contest any claim relating to Taxes without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, if, in the good faith judgment of Buyer, the settlement of, or an adverse judgment with respect to, the claim would reasonably be expected to adversely affect any Indemnified Taxpayer.
(c) Notwithstanding anything contrary in this Agreement to the contrarynotwithstanding, the indemnification obligations of the Seller Parties Stockholders under this Article VI VIII shall survive the Closing until sixty (60) days following the end of the applicable statutes of limitations. With ; provided, however, that the provisions of this Section 8.2 shall apply with respect to any indemnification obligation for any Tax for which a Tax Authority asserts a claim within ninety (90) days Claim asserted before the end of the applicable statute of limitations, an Indemnified Taxpayer shall be treated limitations as having provided timely notice to such Seller Party by providing written notice to Seller Representative on or before the ninetieth (90th) day after the Indemnified Taxpayer’s receipt of a written assertion of the claim interpreted by the Tax Authorityrelevant taxing authority.
(dg) SellersStockholders, on Buyer, the one handCompany and each subsidiary of the Company shall reasonably cooperate with each other in contesting any Tax Claim, which cooperation shall include the retention and, upon the request of the party or parties controlling proceedings relating to such Tax Claim, the provision to such party or parties of records and information which are reasonably relevant to such Tax Claim, and Buyer, making employees available on the other hand, shall divide evenly the financial responsibility for all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (“Transfer Taxes”), and Seller Representative will file all necessary Tax Returns and other documentation with respect a mutually convenient basis to all such Transfer Taxes, and, if required by applicable Legal Requirements, Buyer will, and will cause its Affiliates to, join in the execution provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Returns and other documentationClaim.
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Samples: Stock Purchase Agreement (Sunglass Hut International Inc)
