Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c) may have been provided), subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof), (C) any action or failure to act by SpinCo after the Distribution (including, without limitation, any amendment to SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock (including, without limitation, through the conversion of one class of SpinCo Capital Stock into another class of SpinCo Capital Stock), (D) any act or failure to act by SpinCo or any Affiliate of SpinCo described in Section 6.02 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01. (b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by Parent with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or (C) any act or failure to act by Parent or a member of the Parent Group described in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a). (c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under both Sections 6.05(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent and SpinCo according to relative fault as determined by Parent in good faith.
Appears in 5 contracts
Samples: Tax Matters Agreement (Nuance Communications, Inc.), Tax Matters Agreement (Cerence Inc.), Tax Matters Agreement (Cerence LLC)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion Opinion, or waiver described in clause (Cx), (y) or (z) of Section 6.02(c6.02(d)(i) may have been provided), but subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Parent, its Affiliates and its Affiliates officers, directors and employees from and against, against one hundred percent (100%) of any Separation Tax Losses that are attributable to or result from any one or more of the following: (Ai) the acquisition (other than pursuant to acquisition, after the Separation Transactions) Effective Time, of all or a portion of SpinCo’s SpinCo Capital Stock and/or its Affiliatessubsidiaries’ stock and/or assets (including any Capital Stock of any Controlled Company) by any means whatsoever by any Person, ; (Bii) any “agreement, understanding, arrangement, or substantial negotiations, understandings, agreements ” (as such terms are defined in Treasury Regulations Section 1.355-7(h)) by any one or arrangements more officers or directors of any member of the SpinCo Group or by SpinCo any other person or any persons with the implicit or explicit permission of its Affiliates with respect to one or more such officers or directors regarding transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution or any of the Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly indirectly, Capital Stock of SpinCo and/or any Controlled Company, in each case, representing a Fifty-Percent or Greater Interest in SpinCo therein, as applicable; (or any successor thereof), (Ciii) any action or failure to act by SpinCo or any other member of the SpinCo Group after the Distribution (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock and/or the Capital Stock of any Controlled Company (including, without limitation, through the conversion of one class of SpinCo such Capital Stock into another class of SpinCo such Capital Stock), ; (Div) any act or failure to act by SpinCo or any Affiliate other member of the SpinCo Group described in Section 6.02 (regardless of whether such act or failure to act may be is covered by a Post-Distribution Ruling, Unqualified Tax Opinion Opinion, or waiver described in clause (Cx), (y) or (z) of Section 6.02(c)6.02(d)(i) or by a SpinCo CFO Certificate described in Section 6.02(e)); or (Ev) any breach by SpinCo of any of its agreements or representations set forth in Section 6.016.01 (other than Section 6.01(a)).
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, but subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, indemnify and hold harmless SpinCo and its Affiliates and its officers, directors and employees from and against, one hundred percent (100%) of any Separation Tax Losses that are attributable to, to or result from any one or more of the following: (Ai) the acquisition acquisition, after the Effective Time, of all or a portion of Parent’s Parent Capital Stock and/or its Affiliatessubsidiaries’ stock and/or its assets (including any Capital Stock of any member of the Parent Group that was a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(b) of the Code) in the Distribution or any Internal Distribution) by any means whatsoever by any Person, ; (Bii) any “agreement, understanding, arrangement, or substantial negotiations, agreements ” (as such terms are defined in Treasury Regulations Section 1.355-7(h)) by any one or arrangements more officers or directors of any member of the Parent Group or by Parent any other person with respect to the implicit or explicit permission of one or more of such officers or directors regarding transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution or any of the Distribution Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly stock indirectly, Capital Stock of Parent (or any successor thereofmember of the Parent Group that was a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(b) of the Code) in the Distribution or any Internal Distribution, in each case, representing a Fifty-Percent or Greater Interest therein, ; or (Ciii) any act or failure to act by Parent or a any other member of the Parent Group described in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a)6.03.
(c) To the extent that any Separation Tax Loss reasonably could be is subject to indemnity under both Sections Section 6.05(a) and (bSection 6.05(b), responsibility for such Separation Tax Loss shall be shared by Parent Parent, on the one hand, and SpinCo SpinCo, on the other hand, according to relative fault as determined by Parent the Parties in good faith.
(d) Notwithstanding anything to the contrary in this Agreement or the Separation and Distribution Agreement:
(i) with respect to (A) any Separation Tax Loss resulting from the application of Section 355(e) or Section 355(f) of the Code (other than as a result of an acquisition of a Fifty-Percent or Greater Interest in Parent or any member of the Parent Group that was a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(b) of the Code) in the Distribution or any Internal Distribution) and (B) any other Separation Tax Loss, in each case, resulting, in whole or in part, from an acquisition after the Distribution of any Capital Stock or assets of SpinCo (or any SpinCo Affiliate) by any means whatsoever by any Person or any action or failure to act by SpinCo affecting the voting rights of SpinCo, SpinCo shall be responsible for, and shall indemnify and hold harmless Parent and its Affiliates and its officers, directors and employees from and against, one hundred percent (100%) of such Separation Tax Loss; and
(ii) for purposes of calculating the amount and timing of any Separation Tax Loss for which SpinCo is responsible under this Section 6.05, Separation Tax Losses shall be calculated by assuming that Parent, the Parent Affiliated Group, and each member of the Parent Group (A) pay Tax at the highest marginal corporate Tax rates in effect in each relevant Tax Period and (B) have no Tax Attributes in any relevant Tax Period.
(e) Notwithstanding anything to the contrary in this Agreement or the Separation and Distribution Agreement, with respect to (i) any Separation Tax Losses resulting from the application of Section 355(e) or Section 355(f) of the Code (other than as a result of an acquisition of a Fifty-Percent or Greater Interest in SpinCo or any other Controlled Company) and (ii) any other Separation Tax Loss, in each case, resulting, in whole or in part, from an acquisition after the Distribution of any Capital Stock or assets of Parent (or any Affiliate of Parent) by any means whatsoever by any Person (other than as a result of an acquisition in any Internal Distribution or Internal Separation Transaction), Parent shall be responsible for, and shall indemnify and hold harmless SpinCo, its Affiliates and its officers, directors and employees from and against, one hundred percent (100%) of such Separation Tax Loss.
(f) Notwithstanding anything to the contrary in this Agreement or the Separation and Distribution Agreement:
(i) SpinCo shall pay Parent the amount for which SpinCo has an indemnification obligation under this Section 6.05: (A) in the case of Separation Tax Losses described in clause (a) of the definition of “Separation Tax Losses,” no later than the later of (x) five (5) business days after delivery by Parent to SpinCo of an invoice for the amount of such Separation Tax Losses or (y) two (2) business days prior to the date Parent files, or causes to be filed, the applicable Tax Return for the year of the relevant transaction (provided that, if such Separation Tax Losses arise pursuant to a Final Determination described in clause (a), (b) or (c) of the definition of “Final Determination,” then SpinCo shall pay Parent no later than the later of (x) five (5) business days after delivery by Parent to SpinCo of an invoice for the amount of such Separation Tax Losses or (y) two (2) business days prior to the date for making payment with respect to such Final Determination), and (B) in the case of Separation Tax Losses described in clause (b) or (c) of the definition of “Separation Tax Losses,” no later than the later of (x) five (5) business days after delivery by Parent to SpinCo of an invoice for the amount of such Separation Tax Losses or (y) two (2) business days after the date Parent pays such Separation Tax Losses.
(ii) Parent shall pay SpinCo the amount for which Parent has an indemnification obligation under this Section 6.05: (A) in the case of Separation Tax Losses described in clause (a) of the definition of “Separation Tax Losses,” no later than the later of (x) five (5) business days after delivery by SpinCo to Parent of an invoice for the amount of such Separation Tax Losses or (y) two (2) business days prior to the date SpinCo files, or causes to be filed, the applicable Tax Return for the year of the relevant transaction (provided that, if such Separation Tax Losses arise pursuant to a Final Determination described in clause (a), (b) or (c) of the definition of “Final Determination,” then Parent shall pay SpinCo no later than the later of (x) five (5) business days after delivery by SpinCo to Parent of an invoice for the amount of such Separation Tax Losses or (y) two (2) business days prior to the date for making payment with respect to such Final Determination), and (B) in the case of Separation Tax Losses described in clause (b) or (c) of the definition of “Separation Tax Losses,” no later than the later of (x) five (5) business days after delivery by SpinCo to Parent of an invoice for the amount of such Separation Tax Losses or (y) two (2) business days after the date SpinCo pays such Separation Tax Losses.
Appears in 3 contracts
Samples: Tax Matters Agreement (Solventum Corp), Tax Matters Agreement (3m Co), Tax Matters Agreement (Solventum Corp)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and and, in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (Cz) of Section 6.02(c6.01(d) may have been obtained or provided), subject to Section 6.05(c6.04(c), SpinCo Adient shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Xxxxxxx Controls and its Affiliates and each of their respective officers, directors and employees from and against, against any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ the stock and/or or assets of Adient, any Old Xxxxxxx Controls Internal Controlled or any of their respective Affiliates (including any Adient Capital Stock or any Old Xxxxxxx Controls Internal Controlled Capital Stock) by any means whatsoever by any Person, (B) the acquisition (other than pursuant to the Separation Transactions) by Adient or any of its Affiliates of all or a portion of the stock or assets of any “domestic corporation” (within the meaning of Sections 7701(a)(3) and 7701(a)(4) of the Code) or any issuance of stock by Adient or any Old Xxxxxxx Controls Internal Controlled, (C) any negotiations, understandings, agreements or arrangements by SpinCo Adient or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly indirectly, a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)Old Xxxxxxx Controls Internal Controlled, (CD) any action or failure to act by SpinCo Adient after the Distribution (including, without limitation, any amendment to SpinCoAdient’s or any Old Xxxxxxx Controls Internal Controlled’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock the stock of Adient or any Old Xxxxxxx Controls Internal Controlled (including, without limitation, through the conversion of one class of SpinCo Capital Stock stock into another class of SpinCo Capital Stockstock), or (DE) any act or failure to act by SpinCo Adient or any Adient Affiliate of SpinCo described in Section 6.02 6.01 (regardless whether such act or failure to act is covered by a private letter ruling, Unqualified Tax Opinion or waiver described in clause (z) of Section 6.01(d) and regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion have been permitted at the time it was taken (or waiver described in clause (Cnot taken) pursuant to the penultimate sentence of Section 6.02(c6.01(b)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01).
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c6.04(c), Parent Xxxxxxx Controls shall be responsible for, and shall indemnify, defend, indemnify and hold harmless SpinCo Adient and its Affiliates and each of their respective officers, directors and employees from and against, against any Separation Tax Losses that are attributable to, or result from from, any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions or the Tyco Merger) of all or a portion of Parent’s and/or the stock or assets of Xxxxxxx Controls or any of its Affiliates’ stock and/or its assets Affiliates (including any Old Xxxxxxx Controls Internal Distributing Capital Stock) by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by Parent Xxxxxxx Controls or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly stock of Parent (or any successor thereof) representing indirectly, a Fifty-Percent or Greater Interest thereinin any Old Xxxxxxx Controls Internal Distributing, or (C) any act or failure to act by Parent Xxxxxxx Controls or a member of the Parent Xxxxxxx Controls Group described in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a)6.02.
(c) To the extent that any Separation Tax Loss reasonably could be is subject to indemnity under both Sections 6.05(a6.04(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent Xxxxxxx Controls and SpinCo Adient according to relative fault as determined by Parent Xxxxxxx Controls in good faith.
(d) Adient shall pay Xxxxxxx Controls the amount of any Separation Tax Losses for which Adient is responsible under this Section 6.04: (A) in the case of Separation Tax Losses described in clause (i) of the definition of Separation Tax Losses, no later than two Business Days prior to the date Xxxxxxx Controls files, or causes to be filed, the applicable Tax Return (the “Filing Date”) (or, if such Separation Tax Losses arise pursuant to a Final Determination described in clause (a), (b) or (c) of the definition of “Final Determination,” then Adient shall pay Xxxxxxx Controls no later than two Business Days prior to the due date for making payment with respect to such Final Determination) and (B) in the case of Separation Tax Losses described in clause (ii) or (iii) of the definition of “Separation Tax Losses,” no later than two Business Days after the date Xxxxxxx Controls pays such Separation Tax Losses. Xxxxxxx Controls shall pay Adient the amount of any Separation Tax Losses (described in clause (ii) or (iii) of the definition of “Separation Tax Losses”) for which Xxxxxxx Controls is responsible under this Section 6.04 no later than two Business Days after the date Adient pays such Separation Tax Losses. Each Company shall have the right to review the calculation of any Separation Tax Losses prepared by the other Company, including any related workpapers and other supporting documentation.
Appears in 3 contracts
Samples: Tax Matters Agreement (Adient PLC), Tax Matters Agreement (Adient LTD), Tax Matters Agreement (Johnson Controls International PLC)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c7.02(c) may have been provided), subject to Section 6.05(c7.06(c), SpinCo UpstreamCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Contribution, the Distribution, or any of the other Separation Transactions) of all or a portion of SpinCoUpstreamCo’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo UpstreamCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo UpstreamCo (or any successor thereof), (C) any action or failure to act by SpinCo UpstreamCo after the Distribution (including, without limitation, any amendment to SpinCoUpstreamCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock UpstreamCo stock (including, without limitation, through the conversion of one class of SpinCo UpstreamCo Capital Stock into another class of SpinCo UpstreamCo Capital Stock), (D) any act or failure to act by SpinCo UpstreamCo or any Affiliate of SpinCo UpstreamCo described in Section 6.02 7.02 or Section 7.03 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)7.02(c) or a CFO Certificate) or (E) any breach by SpinCo UpstreamCo of any of its agreements or representations set forth in Section 6.017.01.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c7.06(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo UpstreamCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by Parent with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or (C) any act or failure to act by Parent or a member of the Parent Group described in Section 6.03 7.04 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a7.01(a).
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under either or both Sections 6.05(a7.06(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent and SpinCo UpstreamCo according to relative fault as determined by Parent in good faith.
Appears in 3 contracts
Samples: Tax Matters Agreement (Arconic Inc.), Tax Matters Agreement (Alcoa Upstream Corp), Tax Matters Agreement
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and and, in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (Cz) of Section 6.02(c6.01(d) may have been obtained or provided), subject to Section 6.05(c6.04(c), SpinCo Adient shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Xxxxxxx Controls and its Affiliates and each of their respective officers, directors and employees from and against, against any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ the stock and/or or assets of Adient, any Old Xxxxxxx Controls Internal Controlled or any of their respective subsidiaries (including any Adient Capital Stock or any Old Xxxxxxx Controls Internal Controlled Capital Stock) by any means whatsoever by any Person, (B) the acquisition (other than pursuant to the Separation Transactions) by Adient or any of its Affiliates of all or a portion of the stock or assets of any “domestic corporation” (within the meaning of Sections 7701(a)(3) and 7701(a)(4) of the Code) or any issuance of stock by Adient or any Old Xxxxxxx Controls Internal Controlled, (C) any negotiations, understandings, agreements or arrangements by SpinCo Adient or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly indirectly, a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)Old Xxxxxxx Controls Internal Controlled, (CD) any action or failure to act by SpinCo Adient after the Distribution (including, without limitation, any amendment to SpinCoAdient’s or any Old Xxxxxxx Controls Internal Controlled’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock the stock of Adient or any Old Xxxxxxx Controls Internal Controlled (including, without limitation, through the conversion of one class of SpinCo Capital Stock stock into another class of SpinCo Capital Stockstock), or (DE) any act or failure to act by SpinCo Adient or any Adient Affiliate of SpinCo described in Section 6.02 6.01 (regardless whether such act or failure to act is covered by a private letter ruling, Unqualified Tax Opinion or waiver described in clause (z) of Section 6.01(d) and regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion have been permitted at the time it was taken (or waiver described in clause (Cnot taken) pursuant to the penultimate sentence of Section 6.02(c6.01(b)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01).
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c6.04(c), Parent Xxxxxxx Controls shall be responsible for, and shall indemnify, defend, indemnify and hold harmless SpinCo Adient and its Affiliates and each of their respective officers, directors and employees from and against, against any Separation Tax Losses that are attributable to, or result from from, any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions or the Tyco Merger) of all or a portion of Parent’s and/or the stock or assets of Xxxxxxx Controls or any of its Affiliates’ stock and/or its assets Affiliates (including any Old Xxxxxxx Controls Internal Distributing Capital Stock) by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by Parent Xxxxxxx Controls or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly stock of Parent (or any successor thereof) representing indirectly, a Fifty-Percent or Greater Interest thereinin any Old Xxxxxxx Controls Internal Distributing, or (C) any act or failure to act by Parent Xxxxxxx Controls or a member of the Parent Xxxxxxx Controls Group described in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a)6.02.
(c) To the extent that any Separation Tax Loss reasonably could be is subject to indemnity under both Sections 6.05(a6.04(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent Xxxxxxx Controls and SpinCo Adient according to relative fault as determined by Parent Xxxxxxx Controls in good faith.
(d) Adient shall pay Xxxxxxx Controls the amount of any Separation Tax Losses for which Adient is responsible under this Section 6.04: (A) in the case of Separation Tax Losses described in clause (i) of the definition of Separation Tax Losses, no later than two Business Days prior to the date Xxxxxxx Controls files, or causes to be filed, the applicable Tax Return (the “Filing Date”) (or, if such Separation Tax Losses arise pursuant to a Final Determination described in clause (a), (b) or (c) of the definition of “Final Determination,” then Adient shall pay Xxxxxxx Controls no later than two Business Days prior to the due date for making payment with respect to such Final Determination) and (B) in the case of Separation Tax Losses described in clause (ii) or (iii) of the definition of “Separation Tax Losses,” no later than two Business Days after the date Xxxxxxx Controls pays such Separation Tax Losses. Xxxxxxx Controls shall pay Adient the amount of any Separation Tax Losses (described in clause (ii) or (iii) of the definition of “Separation Tax Losses”) for which Xxxxxxx Controls is responsible under this Section 6.04 no later than two Business Days after the date Adient pays such Separation Tax Losses. Each Company shall have the right to review the calculation of any Separation Tax Losses prepared by the other Company, including any related workpapers and other supporting documentation.
Appears in 2 contracts
Samples: Tax Matters Agreement, Tax Matters Agreement (Adient LTD)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement, the Separation Agreement or the Separation and Distribution Merger Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b) may have been provided), but subject to Section 6.05(c)2.06 and Section 6.07, SpinCo Acquiror and Radio shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, for any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCoeither or both of Acquiror’s and/or its Affiliates’ Radio’s stock and/or of the Radio Group’s assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo either or both of Acquiror and/or Radio or any other member of its Affiliates their respective Groups (provided that, in the case of Radio or any other member of the Radio Group, such negotiations, understandings, agreements or arrangements follow the Merger) with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, that cause any of the Distribution Distributions to be treated as part of a plan (which plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of either or both of Acquiror and/or Radio representing a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)therein, as applicable, (C) any action or failure to act by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups (in the case of Radio or any member of the Radio Group, after the Distribution Merger) (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock either or both of Acquiror’s and/or Radio’s stock (including, without limitation, through the conversion of one class of SpinCo Radio Capital Stock or Acquiror Capital Stock into another class of SpinCo Radio Capital Stock or Acquiror Capital Stock, but not including the composition of the Acquiror Board (as defined in the Merger Agreement) as contemplated by Section 7.22(a) of the Merger Agreement), other than entering into the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, (D) any act or failure to act by SpinCo either or both of Acquiror and/or Radio or any Affiliate other member of SpinCo described in Section 6.02 their respective Groups that would affect the Tax-Free Status of the Distributions or Merger (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b)) ), other than entering into the Merger, or (E) any breach or inaccuracy by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups of any of its their agreements or representations set forth herein; provided, however, that notwithstanding the foregoing, in the case of an acquisition described in clause (A) of this Section 6.016.04(a), which acquisition is made in the open market by any person (x) who is not (i) a member of the Acquiror Group, (ii) an Affiliate of Acquiror, (iii) an officer or director of Acquiror, (iv) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)) of Acquiror, or (v) any other person acting with the implicit or explicit permission of Acquiror, and (y) who was not solicited to make such acquisition by any person described in subclauses (i), (ii), (iii), (iv) or (v) of this sentence, then Acquiror and Radio shall be responsible for only fifty percent (50%) of any Separation Tax Losses attributable to or resulting from such acquisition.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by Parent with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or (C) any act or failure to act by Parent or a member of the Parent Group described in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a).
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under both Sections 6.05(a) Section 2.05 and (b)Section 2.06, responsibility for such Separation Tax Loss shall be shared by Parent CBS, on the one hand, and SpinCo Acquiror and Radio, on the other hand, according to relative fault as determined by Parent the Parties in good faith.
Appears in 2 contracts
Samples: Tax Matters Agreement (CBS Corp), Tax Matters Agreement (CBS Corp)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c6.01(d) may have been provided), subject to Section 6.05(c6.04(b), SpinCo Outdoor Americas shall be responsible for, and shall indemnify, defend, and hold harmless Parent CBS and its Affiliates and any CBS Indemnified Party from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation TransactionsContribution, the IPO, or the Distributions) of all or a portion of SpinCoOutdoor Americas’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof), (C) any action or failure to act by SpinCo after the Distribution (including, without limitation, any amendment to SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock (including, without limitation, through the conversion of one class of SpinCo Capital Stock into another class of SpinCo Capital Stock), (D) any act or failure to act by SpinCo or any Affiliate of SpinCo described in Section 6.02 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by Parent Outdoor Americas with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in Outdoor Americas (or any successor thereof) or any other Controlled Company (or any successor thereof) therein, (C) any action or failure to act by Outdoor Americas after the Split-Off (including, without limitation, any amendment to Outdoor Americas’ certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of Outdoor Americas stock (including, without limitation, through the conversion of one class of Outdoor Americas Capital Stock into another class of Outdoor Americas Capital Stock), (D) any act or failure to act by Outdoor Americas or any Outdoor Americas Affiliate described in Section 6.01 (regardless whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.01(d)) or (E) any breach by Outdoor Americas of any of its agreements or representations set forth in Section 6.01(a) or Section 6.01(b).
(b) Notwithstanding anything in this Agreement or the Separation Agreement to the contrary, subject to Section 6.04(b), CBS shall be responsible for, and shall indemnify, defend, and hold harmless Outdoor Americas and its Affiliates and any Outdoor Americas Indemnified Party from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of CBS’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by CBS with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent (CBS or any successor thereof) other Distributing Company representing a Fifty-Percent or Greater Interest therein, or (C) any act or failure to act by Parent CBS or a member of the Parent CBS Group described in Section 6.03 6.02 or any breach by Parent CBS of any of its agreements or representations set forth in Section 6.01(a)6.02.
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under either or both Sections 6.05(a6.04(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent CBS and SpinCo Outdoor Americas according to relative fault as determined by Parent CBS in good faith.
Appears in 2 contracts
Samples: Tax Matters Agreement (CBS Outdoor Americas Inc.), Tax Matters Agreement (CBS Outdoor Americas Inc.)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement SpinCo shall be responsible for any Separation Tax Losses resulting from one or more of the Separation and Distribution Agreement to the contrary following (and in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (Cx), (y) or (z) of Section 6.02(c) or consent under Section 6.02(d) may have been provided), subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: ):
(Ai) the direct or indirect acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCo’s and/or its Affiliates’ stock and/or Capital Stock, any Section 355 Company’s Capital Stock, or the SpinCo Group’s assets by any means whatsoever by any PersonPerson (other than the acquisition of Additional Merger Consideration pursuant to Section 3.1(a) and Annex I of the Merger Agreement, the acquisition of the Retained Shares, an acquisition of the SpinCo shares set forth on Schedule B or an acquisition pursuant to the Clean-Up Distribution or the Debt-for-Equity Exchange (Bthe “Known Acquisitions”)),
(ii) any negotiations, understandings, agreements agreements, or arrangements by SpinCo or (after the Effective Time), Merger Partner, Merger Partner Equityholder, any member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or, in each case, any of its their respective Affiliates or Group members with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger, the Separation and Distribution Agreement, or any other Transaction Document, that cause any of the Distribution Distributions to be treated as part of a plan Plan (which Plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of SpinCo or any Section 355 Company representing a Fifty-Percent or Greater Interest in SpinCo therein, as applicable,
(or any successor thereof), (Ciii) any action or failure to act by SpinCo (after the Distribution Effective Time), Merger Partner, Merger Partner Equityholder, any member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or, in each case, any of their respective Affiliates or Group members (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo SpinCo’s Capital Stock or a Section 355 Company’s Capital Stock (including, without limitation, through the conversion of one class of SpinCo or Section 355 Company Capital Stock into another class of SpinCo or Section 355 Company Capital Stock), other than entering into the Merger, the Separation and Distribution Agreement, or any other Transaction Document, or
(Div) any act or failure to act by SpinCo (after the Effective Time), Xxxxxx Partner, Merger Partner Equityholder or any Affiliate member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or Merger Partner Equityholder Group or, in each case, any of their respective Affiliates that (A) could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status, except to the extent that after due inquiry and consultation with a Tax Advisor, such Person did not know (and should not reasonably have expected) that such action could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status or (B) is described in Section 6.02 6.02, other than entering into the Merger; provided, for the avoidance of doubt, that the exclusion of the Merger set forth in clause (regardless of whether such A) and (B) above shall not exclude any act or failure to act may be covered by (other than entering into the Merger) that would cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status as a Postresult of causing the Merger to fail to qualify for Tax-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01Free Status.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, for any liability for Separation Tax Losses that are attributable to, or result resulting from any one or more of the following: :
(Ai) the direct or indirect acquisition following the Merger of all or a portion of Parent’s and/or its Affiliates’ stock and/or its or the Parent Group’s assets by any means whatsoever by any Person, ,
(Bii) any negotiations, agreements understandings, agreements, or arrangements by any member of the Parent Group with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger, the Separation and Distribution Agreement, or any other Transaction Document, that cause any of the Distribution Distributions to be treated as part of a plan Plan (which Plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or
(iii) any action or failure to act by any member of the Parent Group that could cause the Tax-Free Transactions (Cother than the Merger) to fail to qualify for Tax-Free Status, except to the extent that after due inquiry and consultation with a Tax Advisor, such Person did not know (and should not reasonably have expected) that such action could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status, other than entering into the Merger, disposing of the Retained Shares (whether by means of a Clean-Up Distribution, a Debt-for-Equity Exchange or otherwise) and disposing, or permitting dispositions of, the SpinCo shares set forth in Schedule B ; provided, for the avoidance of doubt, that the exclusion of the Merger above in this clause (iii) shall not exclude any act or failure to act by Parent or a member of (other than entering into the Parent Group described in Section 6.03 or any breach by Parent Merger) that would affect Tax-Free Status of any of its agreements or representations set forth in Section 6.01(a)the Tax-Free Transactions (other than the Merger) as a result of affecting the Tax-Free Status of the Merger.
(c) To Notwithstanding anything in Section 6.04(b) or any other provision of this Agreement, the Separation and Distribution Agreement or the Merger Agreement to the contrary:
(i) SpinCo shall be responsible for any Separation Tax Losses resulting (for the avoidance of doubt, in whole or in part) from an acquisition after the Merger (other than the Known Acquisitions) of any Capital Stock or assets of SpinCo or any member of the SpinCo Group by any means whatsoever by any Person or any action or failure to act by SpinCo or any member of the SpinCo Group affecting the voting rights of SpinCo or Section 355 Company Capital Stock or the stock of any member of the SpinCo Group.
(ii) SpinCo shall not be responsible for Separation Tax Losses under Section 6.04(a) and Section 6.04(c) to the extent that the relevant Tax-Free Transactions (other than the Merger) did not qualify for Tax-Free Status at the time they were taken solely as a result of facts and circumstances pertaining to the Parent Group (or the SpinCo Pre-Transaction Group) existing as of immediately after the Merger (it being agreed and understood that this clause (ii) shall not relieve SpinCo of responsibility it would otherwise have hereunder in the case of a failure to qualify for Tax-Free Status that arises both as a result of facts and circumstances existing as of immediately after the Merger and facts and circumstances arising thereafter).
(d) Parent or SpinCo, as applicable, (the “Indemnifying Party”) shall pay to SpinCo or Parent, as applicable (the “Indemnified Party”), the amount of any Separation Tax Loss reasonably could be subject to indemnity Losses for which the Indemnifying Party is responsible under both Sections 6.05(aSection 2.06, Section 2.07 or this Section 6.04:
(i) and In the case of Separation Tax Losses described in clause (b)a) of the definition of Separation Tax Losses, responsibility for SpinCo (if SpinCo is the Indemnifying Party) shall pay Parent such Separation Tax Loss shall Losses no later than ten (10) Business Days prior to the Due Date of the Tax Return that Parent files, or causes to be shared by Parent and SpinCo according to relative fault as determined by Parent in good faith.filed, for the year of the
Appears in 1 contract
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c7.02(c) may have been provided), subject to Section 6.05(c7.06(c), GRP&E/BCS SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (Ai) the acquisition (other than pursuant to the Contribution, the External Distribution or any of the other Separation Transactions) of all or a portion of GRP&E/BCS SpinCo’s and/or its Affiliates’ stock Capital Stock and/or assets by any means whatsoever by any Person, (Bii) any negotiations, understandings, agreements agreements, arrangements or arrangements discussions by GRP&E/BCS SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in GRP&E/BCS SpinCo or any Internal Spinco (or any successor thereofof any of them), (Ciii) any action or failure to act by GRP&E/BCS SpinCo after the External Distribution (including, without limitation, any amendment to GRP&E/BCS SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of GRP&E/BCS SpinCo Capital Stock stock (including, without limitation, through the conversion of one class of SpinCo GRP&E/BCS Capital Stock into another class of SpinCo GRP&E/BCS Capital Stock), (Div) any act or failure to act by GRP&E/BCS SpinCo or any Affiliate of GRP&E/BCS SpinCo described in Section 6.02 7.02 or Section 7.03 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)7.02(c) or a CFO Certificate) or (Ev) any breach by GRP&E/BCS SpinCo of any of its agreements or representations set forth in Section 6.017.01, Section 7.02 or Section 7.03.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c7.06(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless GRP&E/BCS SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (Ai) the acquisition (other than pursuant to the Contribution, the External Distribution or any of the other Separation Transactions) of all or a portion of Parent’s and/or its Affiliates’ stock Capital Stock and/or its assets by any means whatsoever by any Person, (Bii) any negotiations, agreements agreements, arrangements or arrangements discussions by Parent with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent or Arcolux (or any successor thereofof any of them) representing a Fifty-Percent or Greater Interest therein, or (Ciii) any act or failure to act by Parent or a member of the Parent Group described in Section 6.03 7.04 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a)7.01(a) or Section 7.04.
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under either or both Sections 6.05(a7.06(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent and GRP&E/BCS SpinCo according to relative fault as determined by Parent in good faith.
Appears in 1 contract
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c6.01(d)(vii) may have been provided), subject to Section 6.05(c6.04(b), SpinCo Radio shall be responsible for, and shall indemnify, defend, and hold harmless Parent CBS and its Affiliates and any CBS Indemnified Party from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation TransactionsIPO or the Distributions) of all or a portion of SpinCoRadio’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof), (C) any action or failure to act by SpinCo after the Distribution (including, without limitation, any amendment to SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock (including, without limitation, through the conversion of one class of SpinCo Capital Stock into another class of SpinCo Capital Stock), (D) any act or failure to act by SpinCo or any Affiliate of SpinCo described in Section 6.02 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by Parent Radio with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in Radio (or any successor thereof), (C) any action or failure to act by Radio after the Split-Off (including, without limitation, any amendment to Radio’ certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of Radio stock (including, without limitation, through the conversion of one class of Radio Capital Stock into another class of Radio Capital Stock), (D) any act or failure to act by Radio or any Radio Affiliate described in Section 6.01 (regardless whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.01(d)(vii)) or (E) any breach by Radio of any of its agreements or representations set forth in Section 6.01(a) or Section 6.01(b).
(b) Notwithstanding anything in this Agreement or the Separation Agreement to the contrary, subject to Section 6.04(b), CBS shall be responsible for, and shall indemnify, defend, and hold harmless Radio and its Affiliates and any Radio Indemnified Party from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of CBS’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by CBS with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent (CBS or any successor thereof) other Distributing Company representing a Fifty-Percent or Greater Interest therein, or (C) any act or failure to act by Parent CBS or a member of the Parent CBS Group described in Section 6.03 6.02, or (D) any breach by Parent CBS of any of its agreements or representations set forth in Section 6.01(a)6.02.
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under either or both Sections 6.05(a6.04(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent CBS and SpinCo Radio according to relative fault as determined by Parent the Parties in good faith.
Appears in 1 contract
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement, the Separation Agreement or the Separation and Distribution Merger Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b) may have been provided), but subject to Section 6.05(c)2.06 and Section 6.07, SpinCo Acquiror and Radio shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, for any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCoeither or both of Acquiror’s and/or its Affiliates’ Radio’s stock and/or of the Radio Group’s assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo either or both of Acquiror and/or Radio or any other member of its Affiliates their respective Groups (provided that, in the case of Radio or any other member of the Radio Group, such negotiations, understandings, agreements or arrangements follow the Merger) with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a Table of Contents series of such transactions or events) ), other than the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, that cause any of the Distribution Distributions to be treated as part of a plan (which plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of either or both of Acquiror and/or Radio representing a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof)therein, as applicable, (C) any action or failure to act by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups (in the case of Radio or any member of the Radio Group, after the Distribution Merger) (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock either or both of Acquiror’s and/or Radio’s stock (including, without limitation, through the conversion of one class of SpinCo Radio Capital Stock or Acquiror Capital Stock into another class of SpinCo Radio Capital Stock or Acquiror Capital Stock, but not including the composition of the Acquiror Board (as defined in the Merger Agreement) as contemplated by Section 7.22(a) of the Merger Agreement), other than entering into the Merger or any transactions contemplated by the Merger Agreement, the Separation Agreement or any Ancillary Agreement, (D) any act or failure to act by SpinCo either or both of Acquiror and/or Radio or any Affiliate other member of SpinCo described in Section 6.02 their respective Groups that would affect the Tax-Free Status of the Distributions or Merger (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (A), (B) or (C) of Section 6.02(c6.02(b)) ), other than entering into the Merger, or (E) any breach or inaccuracy by SpinCo either or both of Acquiror and/or Radio or any other member of their respective Groups of any of its their agreements or representations set forth herein; provided, however, that notwithstanding the foregoing, in the case of an acquisition described in clause (A) of this Section 6.016.04(a), which acquisition is made in the open market by any person (x) who is not (i) a member of the Acquiror Group, (ii) an Affiliate of Acquiror, (iii) an officer or director of Acquiror, (iv) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)) of Acquiror, or (v) any other person acting with the implicit or explicit permission of Acquiror, and (y) who was not solicited to make such acquisition by any person described in subclauses (i), (ii), (iii), (iv) or (v) of this sentence, then Acquiror and Radio shall be responsible for only fifty percent (50%) of any Separation Tax Losses attributable to or resulting from such acquisition.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (A) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock and/or its assets by any means whatsoever by any Person, (B) any negotiations, agreements or arrangements by Parent with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or (C) any act or failure to act by Parent or a member of the Parent Group described in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a).
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under both Sections 6.05(a) Section 2.05 and (b)Section 2.06, responsibility for such Separation Tax Loss shall be shared by Parent CBS, on the one hand, and SpinCo Acquiror and Radio, on the other hand, according to relative fault as determined by Parent the Parties in good faith.
Appears in 1 contract
Samples: Tax Matters Agreement (Entercom Communications Corp)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and and, in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (Cz) of Section 6.02(c6.01(d) may have been obtained or provided), subject to Section 6.05(c6.04(c), SpinCo Adient shall be responsible for, and shall indemnify, defend, indemnify and hold harmless Parent Xxxxxxx Controls and its Affiliates from and againsteach of their respective officers, any Separation Tax Losses that are attributable to or result from any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions) of all or a portion of SpinCo’s and/or its Affiliates’ stock and/or assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause the Distribution to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in SpinCo (or any successor thereof), (C) any action or failure to act by SpinCo after the Distribution (including, without limitation, any amendment to SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo Capital Stock (including, without limitation, through the conversion of one class of SpinCo Capital Stock into another class of SpinCo Capital Stock), (D) any act or failure to act by SpinCo or any Affiliate of SpinCo described in Section 6.02 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01.directors
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c6.04(c), Parent Xxxxxxx Controls shall be responsible for, and shall indemnify, defend, indemnify and hold harmless SpinCo Adient and its Affiliates and each of their respective of- ficers, directors and employees from and against, against any Separation Tax Losses that are attributable to, or result from from, any one or more of the following: (A) the acquisition (other than pursuant to the Separation Transactions or the Tyco Merger) of all or a portion of Parent’s and/or the stock or assets of Xxxx- son Controls or any of its Affiliates’ stock and/or its assets Affiliates (including any Old Xxxxxxx Controls Internal Distributing Capital Stock) by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by Parent Xxxxxxx Controls or any of its Affiliates with respect to transactions transac- tions or events (including, without limitation, stock issuances, issuances pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, amendments or a series of such transactions or events) that cause any of the Distribution Old Xxxxxxx Controls Internal Distributions to be treated as part of a plan pursuant to which one or more Persons acquire acquire, directly or indirectly stock of Parent (or any successor thereof) representing indirect- ly, a Fifty-Percent or Greater Interest thereinin any Old Xxxxxxx Controls Internal Distributing, or (C) any act or failure to act by Parent Xxxxxxx Controls or a member of the Parent Xxxxxxx Controls Group described de- scribed in Section 6.03 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a)6.02.
(c) To the extent that any Separation Tax Loss reasonably could be is subject to indemnity under both Sections 6.05(a6.04(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent Xxxxxxx Controls and SpinCo Adient according to relative fault as determined by Parent Xxxxxxx Controls in good faith.
Appears in 1 contract
Samples: Tax Matters Agreement (Adient LTD)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement SpinCo shall be responsible for any Separation Tax Losses resulting from one or more of the Separation and Distribution Agreement to the contrary following (and in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (Cx), (y) or (z) of Section 6.02(c) or consent under Section 6.02(d) may have been provided), subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: ):
(Ai) the direct or indirect acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCo’s and/or its Affiliates’ stock and/or Capital Stock, any Section 355 Company’s Capital Stock, or the SpinCo Group’s assets by any means whatsoever by any PersonPerson (other than the acquisition of Additional Merger Consideration pursuant to Section 3.1(a) and Annex I of the Merger Agreement, the acquisition of the Retained Shares, an acquisition of the SpinCo shares set forth on Schedule B or an acquisition pursuant to the Clean-Up Distribution or the Debt-for-Equity Exchange (Bthe “Known Acquisitions”)),
(ii) any negotiations, understandings, agreements agreements, or arrangements by SpinCo or (after the Effective Time), Merger Partner, Merger Partner Equityholder, any member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or, in each case, any of its their respective Affiliates or Group members with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger, the Separation and Distribution Agreement, or any other Transaction Document, that cause any of the Distribution Distributions to be treated as part of a plan Plan (which Plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of SpinCo or any Section 355 Company representing a Fifty-Percent or Greater Interest in SpinCo therein, as applicable,
(or any successor thereof), (Ciii) any action or failure to act by SpinCo (after the Distribution Effective Time), Merger Partner, Merger Partner Equityholder, any member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or, in each case, any of their respective Affiliates or Group members (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo SpinCo’s Capital Stock or a Section 355 Company’s Capital Stock (including, without limitation, through the conversion of one class of SpinCo or Section 355 Company Capital Stock into another class of SpinCo or Section 355 Company Capital Stock), other than entering into the Merger, the Separation and Distribution Agreement, or any other Transaction Document, or
(Div) any act or failure to act by SpinCo (after the Effective Time), Xxxxxx Partner, Merger Partner Equityholder or any Affiliate member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or Merger Partner Equityholder Group or, in each case, any of their respective Affiliates that (A) could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status, except to the extent that after due inquiry and consultation with a Tax Advisor, such Person did not know (and should not reasonably have expected) that such action could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status or (B) is described in Section 6.02 6.02, other than entering into the Merger; provided, for the avoidance of doubt, that the exclusion of the Merger set forth in clause (regardless of whether such A) and (B) above shall not exclude any act or failure to act may be covered by (other than entering into the Merger) that would cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status as a Postresult of causing the Merger to fail to qualify for Tax-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01Free Status.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, for any liability for Separation Tax Losses that are attributable to, or result resulting from any one or more of the following: :
(Ai) the direct or indirect acquisition following the Merger of all or a portion of Parent’s and/or its Affiliates’ stock and/or its or the Parent Group’s assets by any means whatsoever by any Person, ,
(Bii) any negotiations, agreements understandings, agreements, or arrangements by any member of the Parent Group with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger, the Separation and Distribution Agreement, or any other Transaction Document, that cause any of the Distribution Distributions to be treated as part of a plan Plan (which Plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or
(iii) any action or failure to act by any member of the Parent Group that could cause the Tax-Free Transactions (Cother than the Merger) to fail to qualify for Tax-Free Status, except to the extent that after due inquiry and consultation with a Tax Advisor, such Person did not know (and should not reasonably have expected) that such action could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status, other than entering into the Merger, disposing of the Retained Shares (whether by means of a Clean-Up Distribution, a Debt-for-Equity Exchange or otherwise) and disposing, or permitting dispositions of, the SpinCo shares set forth in Schedule B ; provided, for the avoidance of doubt, that the exclusion of the Merger above in this clause (iii) shall not exclude any act or failure to act by Parent or a member of (other than entering into the Parent Group described in Section 6.03 or any breach by Parent Merger) that would affect Tax-Free Status of any of its agreements or representations set forth in Section 6.01(a)the Tax-Free Transactions (other than the Merger) as a result of affecting the Tax-Free Status of the Merger.
(c) To Notwithstanding anything in Section 6.04(b) or any other provision of this Agreement, the Separation and Distribution Agreement or the Merger Agreement to the contrary:
(i) SpinCo shall be responsible for any Separation Tax Losses resulting (for the avoidance of doubt, in whole or in part) from an acquisition after the Merger (other than the Known Acquisitions) of any Capital Stock or assets of SpinCo or any member of the SpinCo Group by any means whatsoever by any Person or any action or failure to act by SpinCo or any member of the SpinCo Group affecting the voting rights of SpinCo or Section 355 Company Capital Stock or the stock of any member of the SpinCo Group.
(ii) SpinCo shall not be responsible for Separation Tax Losses under Section 6.04(a) and Section 6.04(c) to the extent that the relevant Tax-Free Transactions (other than the Merger) did not qualify for Tax-Free Status at the time they were taken solely as a result of facts and circumstances pertaining to the Parent Group (or the SpinCo Pre-Transaction Group) existing as of immediately after the Merger (it being agreed and understood that this clause (ii) shall not relieve SpinCo of responsibility it would otherwise have hereunder in the case of a failure to qualify for Tax-Free Status that arises both as a result of facts and circumstances existing as of immediately after the Merger and facts and circumstances arising thereafter).
(d) Parent or SpinCo, as applicable, (the “Indemnifying Party”) shall pay to SpinCo or Parent, as applicable (the “Indemnified Party”), the amount of any Separation Tax Loss reasonably could be subject to indemnity Losses for which the Indemnifying Party is responsible under both Sections 6.05(aSection 2.06, Section 2.07 or this Section 6.04:
(i) and In the case of Separation Tax Losses described in clause (b)a) of the definition of Separation Tax Losses, responsibility for SpinCo (if SpinCo is the Indemnifying Party) shall pay Parent such Separation Tax Loss Losses no later than ten (10) Business Days prior to the Due Date of the Tax Return that Parent files, or causes to be filed, for the year of the D‑Reorganization, the Contributions, the Distributions, the Clean-Up Distribution or the Debt-for-Equity Exchange, as applicable (the “Filing Date”) (provided, that if such Separation Tax Losses arise pursuant to a Final Determination described in clause (a), (b) or (c) of the definition of Final Determination, then (if applicable) the Indemnifying Party shall be shared pay the Party required by Parent Law to pay such Separation Tax Losses no later than fifteen (15) Business Days after the date of such Final Determination), and
(ii) In the case of Separation Tax Losses described in clause (b) or (c) of the definition of Separation Tax Losses, no later than the later of (x) two (2) Business Days after the date the Indemnified Party pays such Separation Tax Losses and SpinCo according to relative fault as determined by Parent in good faith(y) ten (10) Business Days after the Indemnifying Party receives notification from the Indemnified Party of the amount of such Separation Tax Losses due.
Appears in 1 contract
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary (and in each case regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c7.02(c) may have been provided), subject to Section 6.05(c7.06(c), GRP&E/BCS SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: (Ai) the acquisition (other than pursuant to the Contribution, the External Distribution or any of the other Separation Transactions) of all or a portion of GRP&E/BCS SpinCo’s and/or its Affiliates’ stock Capital Stock and/or assets by any means whatsoever by any Person, (Bii) any negotiations, understandings, agreements agreements, arrangements or arrangements discussions by GRP&E/BCS SpinCo or any of its Affiliates with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly a Fifty-Percent or Greater Interest in GRP&E/BCS SpinCo or any Internal Spinco (or any successor thereofof any of them), (Ciii) any action or failure to act by GRP&E/BCS SpinCo after the External Distribution (including, without limitation, any amendment to GRP&E/BCS SpinCo’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of GRP&E/BCS SpinCo Capital Stock stock (including, without limitation, through the conversion of one class of SpinCo GRP&E/BCS Capital Stock into another class of SpinCo GRP&E/BCS Capital Stock), (Div) any act or failure to act by GRP&E/BCS SpinCo or any Affiliate of GRP&E/BCS SpinCo described in Section 6.02 7.02 or Section 7.03 (regardless of whether such act or failure to act may be covered by a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)7.02(c) or a CFO Certificate) or (Ev) any breach by GRP&E/BCS SpinCo of any of its agreements or representations set forth in Section 6.017.01, Section 7.02 or Section 7.03.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c7.06(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless GRP&E/BCS SpinCo and its Affiliates from and against, any Separation Tax Losses that are attributable to, or result from any one or more of the following: (Ai) the acquisition of all or a portion of Parent’s and/or its Affiliates’ stock Capital Stock and/or its assets by any means whatsoever by any Person, (Bii) any negotiations, agreements agreements, arrangements or arrangements discussions by Parent with respect to transactions or events (including, without limitation, stock issuances, pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) that cause any of the Distribution Distributions to be treated as part of a plan pursuant to which one or more Persons acquire directly or indirectly stock of Parent or Arcolux (or any successor thereofof any of them) representing a Fifty-Percent or Greater Interest therein, or (Ciii) any act or failure to act by Parent or a member of the Parent Group described in Section 6.03 7.04 or any breach by Parent of any of its agreements or representations set forth in Section 6.01(a)7.01(a) or Section 7.04.
(c) To the extent that any Separation Tax Loss reasonably could be subject to indemnity under either or both Sections 6.05(a7.06(a) and (b), responsibility for such Separation Tax Loss shall be shared by Parent and GRP&E/BCS SpinCo according to relative fault as determined by Parent in good faith.
Appears in 1 contract
Samples: Tax Matters Agreement (Arconic Rolled Products Corp)
Liability for Separation Tax Losses. (a) Notwithstanding anything in this Agreement SpinCo shall be responsible for any Separation Tax Losses resulting from one or more of the Separation and Distribution Agreement to the contrary following (and in each case case, regardless of whether a Post-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause clauses (Cx), (y) or (z) of Section 6.02(c) or consent under Section 6.02(d) may have been provided), subject to Section 6.05(c), SpinCo shall be responsible for, and shall indemnify, defend, and hold harmless Parent and its Affiliates from and against, any Separation Tax Losses that are attributable to or result from any one or more of the following: ):
(Ai) the direct or indirect acquisition (other than pursuant to following the Separation Transactions) Merger of all or a portion of SpinCo’s and/or its Affiliates’ stock and/or Capital Stock, any Section 355 Company’s Capital Stock, or the SpinCo Group’s assets by any means whatsoever by any PersonPerson (other than the acquisition of Additional Merger Consideration pursuant to Section 3.1(a) and Annex I of the Merger Agreement, the acquisition of the Retained Shares, an acquisition of the SpinCo shares set forth on Schedule B or an acquisition pursuant to the Clean-Up Distribution or the Debt-for-Equity Exchange (Bthe “Known Acquisitions”)),
(ii) any negotiations, understandings, agreements agreements, or arrangements by SpinCo or (after the Effective Time), Merger Partner, Merger Partner Equityholder, any member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or, in each case, any of its their respective Affiliates or Group members with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger, the Separation and Distribution Agreement, or any other Transaction Document, that cause any of the Distribution Distributions to be treated as part of a plan Plan (which Plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of SpinCo or any Section 355 Company representing a Fifty-Percent or Greater Interest in SpinCo therein, as applicable,
(or any successor thereof), (Ciii) any action or failure to act by SpinCo (after the Distribution Effective Time), Merger Partner, Merger Partner Equityholder, any member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or, in each case, any of their respective Affiliates or Group members (including, without limitation, any amendment to SpinCosuch Person’s certificate of incorporation (or other organizational documents), whether through a stockholder vote or otherwise) affecting the voting rights of SpinCo SpinCo’s Capital Stock or a Section 355 Company’s Capital Stock (including, without limitation, through the conversion of one class of SpinCo or Section 355 Company Capital Stock into another class of SpinCo or Section 355 Company Capital Stock), other than entering into the Merger, the Separation and Distribution Agreement, or any other Transaction Document, or
(Div) any act or failure to act by SpinCo (after the Effective Time), Xxxxxx Partner, Merger Partner Equityholder or any Affiliate member of the SpinCo Group (in the case of the SpinCo Pre-Transaction Group, after the Effective Time) or Merger Partner Equityholder Group or, in each case, any of their respective Affiliates that (A) could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status, except to the extent that after due inquiry and consultation with a Tax Advisor, such Person did not know (and should not reasonably have expected) that such action could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status or (B) is described in Section 6.02 6.02, other than entering into the Merger; provided, for the avoidance of doubt, that the exclusion of the Merger set forth in clause (regardless of whether such A) and (B) above shall not exclude any act or failure to act may be covered by (other than entering into the Merger) that would cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status as a Postresult of causing the Merger to fail to qualify for Tax-Distribution Ruling, Unqualified Tax Opinion or waiver described in clause (C) of Section 6.02(c)) or (E) any breach by SpinCo of any of its agreements or representations set forth in Section 6.01Free Status.
(b) Notwithstanding anything in this Agreement or the Separation and Distribution Agreement to the contrary, subject to Section 6.05(c), Parent shall be responsible for, and shall indemnify, defend, and hold harmless SpinCo and its Affiliates from and against, for any liability for Separation Tax Losses that are attributable to, or result resulting from any one or more of the following: :
(Ai) the direct or indirect acquisition following the Merger of all or a portion of Parent’s and/or its Affiliates’ stock and/or its or the Parent Group’s assets by any means whatsoever by any Person, ,
(Bii) any negotiations, agreements understandings, agreements, or arrangements by any member of the Parent Group with respect to transactions or events (including, without limitation, stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events) ), other than the Merger, the Separation and Distribution Agreement, or any other Transaction Document, that cause any of the Distribution Distributions to be treated as part of a plan Plan (which Plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of Parent (or any successor thereof) representing a Fifty-Percent or Greater Interest therein, or
(iii) any action or failure to act by any member of the Parent Group that could cause the Tax-Free Transactions (Cother than the Merger) to fail to qualify for Tax-Free Status, except to the extent that after due inquiry and consultation with a Tax Advisor, such Person did not know (and should not reasonably have expected) that such action could cause the Tax-Free Transactions (other than the Merger) to fail to qualify for Tax-Free Status, other than entering into the Merger, disposing of the Retained Shares (whether by means of a Clean-Up Distribution, a Debt-for-Equity Exchange or otherwise) and disposing, or permitting dispositions of, the SpinCo shares set forth in Schedule B ; provided, for the avoidance of doubt, that the exclusion of the Merger above in this clause (iii) shall not exclude any act or failure to act by Parent or a member of (other than entering into the Parent Group described in Section 6.03 or any breach by Parent Merger) that would affect Tax-Free Status of any of its agreements or representations set forth in Section 6.01(a)the Tax-Free Transactions (other than the Merger) as a result of affecting the Tax-Free Status of the Merger.
(c) To Notwithstanding anything in Section 6.04(b) or any other provision of this Agreement, the Separation and Distribution Agreement or the Merger Agreement to the contrary:
(i) SpinCo shall be responsible for any Separation Tax Losses resulting (for the avoidance of doubt, in whole or in part) from an acquisition after the Merger (other than the Known Acquisitions) of any Capital Stock or assets of SpinCo or any member of the SpinCo Group by any means whatsoever by any Person or any action or failure to act by SpinCo or any member of the SpinCo Group affecting the voting rights of SpinCo or Section 355 Company Capital Stock or the stock of any member of the SpinCo Group.
(ii) SpinCo shall not be responsible for Separation Tax Losses under Section 6.04(a) and Section 6.04(c) to the extent that the relevant Tax-Free Transactions (other than the Merger) did not qualify for Tax-Free Status at the time they were taken solely as a result of facts and circumstances pertaining to the Parent Group (or the SpinCo Pre-Transaction Group) existing as of immediately after the Merger (it being agreed and understood that this clause (ii) shall not relieve SpinCo of responsibility it would otherwise have hereunder in the case of a failure to qualify for Tax-Free Status that arises both as a result of facts and circumstances existing as of immediately after the Merger and facts and circumstances arising thereafter).
(d) Parent or SpinCo, as applicable, (the “Indemnifying Party”) shall pay to SpinCo or Parent, as applicable (the “Indemnified Party”), the amount of any Separation Tax Loss reasonably could be subject to indemnity Losses for which the Indemnifying Party is responsible under both Sections 6.05(aSection 2.06, Section 2.07 or this Section 6.04:
(i) and In the case of Separation Tax Losses described in clause (b)a) of the definition of Separation Tax Losses, responsibility for SpinCo (if SpinCo is the Indemnifying Party) shall pay Parent such Separation Tax Loss Losses no later than ten (10) Business Days prior to the Due Date of the Tax Return that Parent files, or causes to be filed, for the year of the D-Reorganization, the Contributions, the Distributions, the Clean-Up Distribution or the Debt-for-Equity Exchange, as applicable (the “Filing Date”) (provided, that if such Separation Tax Losses arise pursuant to a Final Determination described in clause (a), (b) or (c) of the definition of Final Determination, then (if applicable) the Indemnifying Party shall be shared pay the Party required by Parent Law to pay such Separation Tax Losses no later than fifteen (15) Business Days after the date of such Final Determination), and
(ii) In the case of Separation Tax Losses described in clause (b) or (c) of the definition of Separation Tax Losses, no later than the later of (x) two (2) Business Days after the date the Indemnified Party pays such Separation Tax Losses and SpinCo according to relative fault as determined by Parent in good faith(y) ten (10) Business Days after the Indemnifying Party receives notification from the Indemnified Party of the amount of such Separation Tax Losses due.
Appears in 1 contract
