Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. (ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis. (iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii). (iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Impac Mortgage Holdings Inc), Equity Purchase Agreement
Liability for Taxes. (ia) Seller New Diamond and SV shall (and New Diamond shall cause the New Diamond Entities to) be liable for and payresponsible for, pay or cause to be paid, and pursuant to ARTICLE XI shall (and New Diamond shall cause the New Diamond Entities to) indemnify Onyx, its Designated Affiliates and each of its Subsidiaries and Affiliates (including the Retained Entities after the Closing Date) (each a “Buyer Tax Indemnitee”) and hold harmless each Buyer Group Member Tax Indemnitee harmless from and against any and all Losses of the following (including reasonable fees and Expenses incurred by such Buyer Group Member expenses in connection with therewith):
(1) any and all Taxes of New Diamond and each New Diamond Entity ((i) other than any Non-Income Taxes attributable to the Retained Business or arising from the Retained Assets and (Aii) limited, in the case of Shared Non-Income Taxes, to the New Diamond Percentage of such Non-Income Taxes);
(2) the New Diamond Percentage of any Shared Non-Income Taxes imposed on any Retained Entity;
(3) any and all United States federal Income Taxes for any taxable period (or portion thereof) that ends on or prior to the Company or Closing Date (such a period, a “Pre-Closing Period”) of the Affiliated Group;
(4) any and all state, local and foreign Income Taxes for which all Pre-Closing Periods of each Retained Entity;
(5) any and all liability for Taxes of the Company may otherwise be liable Affiliated Group imposed on the Retained Entities as a result of having been a member the application of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § Section 1.1502-6 (or any similar provisions provision of state, local or foreign law as law);
(6) any and all Non-Income Taxes for Pre-Closing Periods of, imposed upon, or relating or attributable to the New Diamond Business, the New Diamond Assets or the Standalone Drug Business (regardless of whether such Taxes are imposed on any New Diamond Entity or any Retained Entity); and
(7) any and all Taxes for any taxable period (or portion thereof) that begins after the Closing Date (such a result of having been period, a member of a Company Group and “Post-Closing Period”) of, imposed upon or relating or attributable to the New Diamond Entities, the New Diamond Business or the New Diamond Assets. If, for any Taxes resulting from the ceasing to be a member state, local or foreign Income Tax purposes, any Taxable period of any Company GroupRetained Entity includes but does not end on the Closing Date (any such period, a “Straddle Period”), Income Taxes, if any, attributable to such Straddle Period shall be allocated to (A) New Diamond and SV for the portion of such Straddle Period up to and including the Closing Date, and (B) Taxes imposed on the Company or Onyx for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any such Straddle Period ending on subsequent to the Closing Date. For purposes of the preceding sentence, Income Taxes for the portion of each Straddle Period up to and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the such Straddle Period ending on and including subsequent to the Closing Date shall be determined by assuming that on the basis of an interim closing of the books as of the close of business on the Closing Date as if such Straddle Period consisted of two taxable years or periods, one which ended at the close of Taxable period ending on the Closing Date and the other which began at the followed by a Taxable period beginning of on the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that and exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller . New Diamond and SV shall be entitled to the amount of any refund of (or credit of or against) Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of that such refund (or credit, except ) relates to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (that is the responsibility of New Diamond or portion thereofSV under this Section 4.1(a) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit to which New Diamond or SV is entitled under Section 4.6. For the avoidance of doubt, New Diamond and SV shall be entitled to any deposits of Income Taxes with the Internal Revenue Service made by New Diamond, SV, any New Diamond Entity or, prior to the Closing, the Company or any Retained Entity.
(b) Each of Onyx and the Company shall (and shall cause each of the Retained Entities to), be responsible for, pay or cause to be paid, and shall (and shall cause each of the Retained Entities to) indemnify New Diamond and its Subsidiaries and Affiliates (other than the Retained Entities) (each a “Seller Tax Indemnitee”) and hold each Seller Tax Indemnitee harmless from and against any and all of the following (including reasonable fees and expenses in connection therewith):
(1) any and all Non-Income Taxes of each Retained Entity ((i) other than any Non-Income Taxes attributable to the New Diamond Business, the New Diamond Assets or the Standalone Drug Business and (ii) limited, in the case of Shared Non-Income Taxes, to the Company Percentage of such Non-Income Taxes);
(2) the Company Percentage of any Shared Non-Income Taxes imposed on New Diamond or a New Diamond Entity;
(3) any and all Non-Income Taxes for Pre-Closing Periods of, imposed upon, or relating or attributable to the Retained Business or the Retained Assets (regardless of whether such Non-Income Taxes are imposed on any Retained Entity or New Diamond or any New Diamond Entity);
(4) any and all Taxes for any Post-Closing Period of, imposed upon, or relating or attributable to the Retained Entities, the Retained Business or the Retained Assets and any and all Taxes of Onyx (or any Affiliate of Onyx that purchases a Retained Entity or Retained Asset pursuant hereto); and
(5) notwithstanding Section 4.1(a), any Taxes resulting from any extraordinary transaction taken by or with respect to Taxes (including any interest relating thereto) that results from the carryback of lossesRetained Entities, credits the Retained Business or similar items from a taxable year or period that begins after the Retained Assets on the Closing Date but after the Retained Business Purchase and is attributable any and all Taxes resulting from any Onyx Real Estate Dropdowns (or of any wholly-owned subsidiary referred to in the definition thereof), the Financing or any Future Debt Financing (and New Diamond and SV shall not be responsible for such Taxes described in this clause (5)). Each of Onyx, its Designated Affiliates and the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund of (or credit included on of or against) Taxes to the Closing Date Balance Sheet and taken into account in determining extent that such refund (or credit) relates to a Tax that is the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as responsibility of Onyx, its Designated Affiliates, any Retained Entity or the Company under this Section 4.1(b), except for refunds (or credits) to which New Diamond may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iiiSection 4.1(a).
(ivc) Buyer shall be liable for The parties acknowledge and payagree that they desire and intend to treat (x) the Retained Business Purchase (other than the purchase of Lucky Stores, Inc., a Delaware corporation (“Lucky Delaware”), and its Subsidiaries) as a purchase of assets for federal income Tax purposes, (y) the purchase of Lucky Delaware as a purchase of stock for federal income Tax purposes and (z) the Separation as a transaction that does not result in any gain, including any deferred intercompany gain, for federal income Tax purposes (other than with respect to the distribution of certain New Diamond Assets from Lucky Delaware and its Subsidiaries pursuant to ARTICLE XI this Separation Agreement). In furtherance of the parties’ desire and intention, at the option of SV: New Diamond and Onyx shall indemnify (i) jointly make timely and hold harmless Seller from irrevocable elections under Section 338(h)(10) of the Code (and against any corresponding elections under state or local tax law) (the “338(h)(10) Elections”) with respect to any Retained Entities designated by New Diamond (such entities, the “338(h)(10) Election Subsidiaries”) (provided that this clause (i) shall not be available with respect to any Retained Entity designated by Onyx in writing no later than 60 days after the execution of this Separation Agreement as a Retained Entity to be purchased by an entity that is not a corporation for federal income Tax purposes), (ii) jointly cause any Retained Entities designated by New Diamond (such entities, the “Disregarded Entities”) to be treated as “disregarded” entities within the meaning of Treasury Regulation Section 301.7701-3, including by way of conversion of such Retained Entities into Delaware limited liability companies on or prior to the Closing Date (such treatment, the “Disregarded Entity Treatment”), and all Losses incurred by Seller in connection with (iii) take such other actions as may be necessary or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.appropriate to further
Appears in 3 contracts
Samples: Purchase and Separation Agreement (Albertsons Inc /De/), Purchase and Separation Agreement (Supervalu Inc), Purchase and Separation Agreement (New Aloha CORP)
Liability for Taxes. (ia) Seller shall be liable is responsible for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member will timely pay any Taxes arising or resulting from and against any and all Losses and Expenses incurred by such Buyer Group Member or in connection with the conduct of the Business or arising from (A) Taxes imposed on the Company ownership or for which use of the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant Purchased Assets attributable to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or Tax period that ends ending on or before the Closing Date (a “Pre-Closing Period”) other than any Assumed Liability. Buyer is responsible for and will timely pay any Taxes arising or resulting from or in connection with the portion conduct of the Business or the ownership or use of the Purchased Assets attributable to any Straddle Period ending on and including Tax period beginning after the Closing Date (the a “PrePost-Closing Tax Period”), except, in each case, to the extent such ) and any Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Pricethat are an Assumed Liability.
(iib) The Parties agree that any Apportioned Taxes, and any refund, rebate or similar payment received by Seller or Buyer for any Apportioned Taxes, will be apportioned between Seller and Buyer as follows:
(i) For purposes Apportioned Taxes measured by the amount or level of paragraph any item (a)(iincluding such taxes as are measured by the value of intangibles), whenever it Seller is necessary responsible for the amount of such Apportioned Taxes that are determined by multiplying (A) the amount or level of such items immediately prior to determine the liability for Taxes of the Company for Closing, by (B) a Straddle Periodfraction, the determination numerator of which is the Taxes number of the Company for calendar days in the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other denominator of which began at is the beginning number of calendar days in the entire Straddle Period.
(ii) For all Apportioned Taxes not described in clause (i), Seller is responsible for the amount of such Apportioned Taxes that are determined by multiplying (A) the amount of such Apportioned Taxes for the entire Straddle Period, by (B) a fraction, the numerator of which is the number of calendar days in the portion of the day following Straddle Period ending on the Closing Date and items the denominator of income, gain, deduction, loss or credit which is the number of calendar days in the Company for the entire Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basisPeriod.
(iii) All Apportioned Taxes that are not the responsibility of Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a7.1(b)(i) through Section 7.1(b)(ii) hereof shall be the responsibility of Buyer.
(c) For the avoidance of doubt, Seller and Buyer are each responsible for their own Income Taxes arising out of their conduct of the Business or ARTICLE XI which refund their ownership or credit is actually recognized by Buyer or its Affiliates use of the Purchased Assets, including Income Taxes arising out of the transactions contemplated in this Agreement.
(d) Notwithstanding any other provision contained in this Agreement (including the Company) after the Closinglimitations set forth in Sections 11.2 or 11.3), net any obligation arising out of this Section 7.1 will not be subject to any cost to Buyer and its Affiliates attributable to the obtaining and receipt limits of such refund minimum or creditmaximum amounts, except to the extent such refund or credit arises as the result measurement of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the aggregate amount of such refund Losses or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback limit of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)time.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Boeing Co), Asset Purchase Agreement (Vought Aircraft Industries Inc)
Liability for Taxes. (ia) Seller SEP I shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold the Company and its respective subsidiaries (including SEP III) harmless each Buyer Group Member from any Taxes, together with any costs, expenses, losses or damages, including reasonable expenses of investigation and against any attorneys’ and all Losses accountants’ fees and Expenses expenses, arising out of or incident to the determination, assessment or collection of such Taxes (“Tax Losses”), (i) imposed on or incurred by such Buyer Group Member in connection with SEP III, the Contributed Assets or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result Contributed Business by reason of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § Regulations Section 1.1502-6 or similar provisions of any analogous state, local or foreign law as a result of or regulation which is attributable to having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company consolidated, combined or for which the Company may otherwise be liable for any taxable year or period that ends unitary group on or before the Closing Date and the portion of any Straddle Period ending on prior to and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
or (ii) For purposes of paragraph any Tax Losses (a)(i), whenever it is necessary other than Tax Losses described in clause (i) above) imposed on or incurred by or with respect to determine the liability for Taxes of the Company for a Straddle PeriodSEP III, the determination of Contributed Assets or the Taxes of Contributed Business with respect to the Company for the portion of the Straddle Period ending on period prior to and including the Closing Date Date.
(b) The Company shall be determined liable for, and shall indemnify and hold SEP I and its Affiliates (other than the Company and its subsidiaries, including SEP III) harmless from, any Tax Losses imposed on or incurred by assuming that SEP III, the Straddle Period consisted Contributed Assets or the Contributed Business with respect to the period after the Closing Date.
(c) Whenever it is necessary for purposes of two this Article 5 to determine the amount of any Taxes imposed on or incurred by SEP III, the Contributed Assets or the Contributed Business for a taxable years or periods, one which ended at the close of period beginning before and ending after the Closing Date which is allocable to the period prior to and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of including the Closing Date, providedthe determination shall be made, howeverin the case of property or ad valorem taxes or franchise taxes (which are measured by, or based solely upon capital, debt or a combination of capital and debt), on a per diem basis and, in the case of other Taxes, by assuming that such pre-Closing Date period constitutes a separate taxable period applicable to SEP III, the Contributed Assets or the Contributed Business and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances, allowances and deductions or Taxes for a taxable period beginning before and ending after the Closing Date that are calculated on an annual or periodic basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods to the period prior to and including the Closing Date ratably on a daily per diem basis). Notwithstanding anything to the contrary herein, any franchise tax paid or payable with respect to SEP III, the Contributed Assets or the Contributed Business shall be allocated to the taxable period during which the income, operations, assets or capital comprising the base of such tax is measured, regardless of whether the right to do business for another taxable period is obtained by the payment of such franchise tax.
(iiid) Seller shall be entitled to the amount of any refund or credit of Taxes of If the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net receives a refund of any cost to Buyer and Taxes that SEP I is responsible for hereunder, or if SEP I or its Affiliates attributable to receive a refund of any Taxes that the obtaining and Company is responsible for hereunder, the party receiving such refund shall, within 90 days after receipt of such refund or creditrefund, except remit it to the extent party who has responsibility for such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account Taxes hereunder. The parties shall cooperate in determining the Adjusted Purchase Price. Buyer shall pay, or cause order to be paid, take all necessary steps to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, claim any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)refund.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Contribution, Conveyance and Assumption Agreement (Sanchez Energy Corp), Contribution, Conveyance and Assumption Agreement (Sanchez Energy Corp), Contribution, Conveyance and Assumption Agreement (Sanchez Energy Corp)
Liability for Taxes. (i) The Seller Parties shall be liable for and pay, and pursuant to ARTICLE XI this Article VII shall indemnify and hold harmless each the Buyer Group Member from and against any and Indemnitees against, all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including any amounts owed by a Buyer Indemnitee relating to Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 a contract or similar provisions otherwise) applicable to the business and the assets of stateCCTP, local in each case attributable to taxable years or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends periods ending on or before prior to the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI this Article VII (but without duplication of any amount specified in Section 2.5 or any indemnity under Section 7.1) shall indemnify and hold harmless each Seller Indemnitee from and against against, all Taxes applicable to the business and the assets of CCTP that are attributable to taxable years or periods beginning after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date; provided, however, that Buyer shall not be liable for or pay, and all Losses incurred by shall not indemnify any Seller in connection with or arising Indemnitee from and against, any real Taxes for which the Seller Parties are liable under this Agreement, including pursuant to the preceding sentence. For purposes of this Section 7.5(a), any Straddle Period shall be treated on a “closing of the books” basis as two partial periods, one ending at the close of the Closing Date and the other beginning on the day after the Closing Date, except that Taxes (such as property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax Taxes) imposed on the transactions contemplated by this Agreementa periodic basis shall be allocated on a daily basis.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Cheniere Energy Partners, L.P.), Purchase and Sale Agreement (Cheniere Energy Partners, L.P.)
Liability for Taxes. (ia) Seller Global Crossing NA shall be liable for and payindemnify Exodus or the Company as the case may be, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and for all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or its subsidiaries, or for which the Company or its subsidiaries may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable liabilities pursuant to Treasury Regulation § 1.1502-6 Section 1.1502- 6(a) or any similar provisions provision of any state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable law), for any taxable year or period that ends on or before the Closing Date (such periods referred to as "Pre-Closing Tax Periods" and Taxes for such periods referred to ----------------------- as "Pre-Closing Taxes") and, with respect to any portion of a taxable year or ----------------- period beginning before and ending after the Closing Date (such periods referred to as "Straddle Periods" and Taxes for such periods referred to as "Straddle ---------------- -------- Taxes"), the portion of any such Straddle Period ending on and including the Closing ----- Date; provided, however, that Global Crossing NA shall have no obligation to make any payment pursuant to this Section 8.1, until the amounts that would otherwise be payable pursuant to this Section 8.1 (apart from this proviso) exceed the reserve for Taxes on the Financial Statements.
(b) The Company shall be liable for, and Exodus shall indemnify Global Crossing NA and its affiliates for, all Taxes imposed on Global Crossing NA or any of its affiliates with respect to the Company or its subsidiaries for any taxable year or period that begins after the Closing Date (the “Presuch periods referred to as "Post-Closing Tax Period”), except, in each case, to the extent Periods" and such Taxes were included on referred to as "Post-Closing ------------------------ ------------ Taxes") and, with respect to a Straddle Period, the portion of such Straddle ----- Period beginning after the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(iic) For purposes of paragraph (a)(i)this Section 8.1, whenever it is necessary to determine the liability for Income Taxes of the Company or its subsidiaries for a portion of a Straddle Period, the determination of the Income Taxes for the portion of the Straddle Period ending on, and the portion of the Straddle Period beginning after, the Closing Date, shall be determined by assuming that the Company and its subsidiaries had a taxable year or period that ended at the close of the Closing Date. To the extent permitted by applicable law, the parties agree to elect to treat the Closing Date as the last day of the taxable year. In the case of a Tax that is not based on net income, the Tax for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Tax for the Straddle Period consisted multiplied by a fraction the numerator of two taxable years which is the number of days in the period on or periods, one which ended at the close of before the Closing Date and the other denominator of which began at is the beginning total number of days in the day following Straddle Period.
(d) Exodus covenants that it will not cause or permit the Company, its subsidiaries or any affiliate of Exodus (i) to take any action on the Closing Date and items other than in the Ordinary Course, including but not limited to the distribution of incomeany dividend or the effectuation of any redemption, gain, deduction, loss that could give rise to any Tax liability or credit reduce any Tax attribute of the Company for the Straddle Period shall be allocated between such two taxable years Global Crossing NA Group or periods (ii) take any Tax position on a “closing any Tax Return, take any action, omit to take any action or enter into any transaction that results in any increased Tax liability or reduction of any Tax attribute of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount Global Crossing NA Group in respect of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period or any pre-closing portion of a Straddle Period without the prior written consent of Global Crossing NA, unless it is required to do so by law. Exodus agrees that the extent such Taxes were paid by the Company prior to the Closing Global Crossing NA Group shall have no Tax liability or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net reduction of any cost Tax attribute resulting from any prohibited action described in the preceding sentence and agrees to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and the Global Crossing NA Group against any such Tax and all Losses incurred by Seller any loss, liability, claim, damage, expense or Tax for which indemnification is provided under this Article VIII (as defined below) in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreementtherewith.
Appears in 2 contracts
Samples: Merger Agreement (Global Crossing LTD), Merger Agreement (Exodus Communications Inc)
Liability for Taxes. (ia) Seller SPLC shall be liable for, and shall indemnify, defend and hold harmless SHLX and Operating from any unpaid Taxes (including related penalties and interest) imposed on or incurred by or with respect to the Subject Interests or the assets related to the Subject Interests, attributable to any taxable period ending on or prior to the Closing Date or portion thereof to the extent occurring on or prior to the Closing Date.
(b) SHLX and Operating shall be liable for any Taxes (including related penalties and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses interest) imposed on or incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period the Subject Interests or the assets related to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates Subject Interests attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax any taxable period (or portion thereof) beginning after the Closing Date or such refund portion thereof to the extent occurring after the Closing Date.
(c) Whenever it is necessary for purposes of this Article VI to determine the amount of any Taxes imposed on or credit was included on incurred by or with respect to the Subject Interests or the assets related to the Subject Interests for a taxable period beginning before and ending after the Closing Date Balance Sheet and taken into account which is allocable to the period ending on or prior to the Closing Date, the portion of such Taxes that relate to the pre-closing period (a) in determining the Adjusted Purchase Price. Buyer shall paycase of any property, ad valorem, or cause similar Taxes, shall be deemed to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes Tax for the entire Tax period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on (including any interest relating theretoand including) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and the denominator of which is attributable the number of days in the entire Tax period, and (b) in the case of all other Taxes, shall be deemed equal to the Company andamount which would be payable as computed on a “closing-of-the-books” basis if the relevant Tax period ended at the close of business on the Closing Date.
(d) If SHLX receives a refund of any Taxes (including related penalties and interest) that SPLC is responsible for hereunder, to or if SPLC receives a refund of any income taxes (including related penalties and interest) that SHLX is responsible for hereunder, the extent party receiving such refund is actually received by Seller or its Affiliatesshall, any such refund or credit shall be paid by Seller to Buyer within fifteen ninety (1590) days of the after receipt of such refund by Sellerrefund, remit it to the party which has responsibility for such Taxes hereunder. Buyer The parties shall be entitled cooperate in order to any refund or credit included on the Closing Date Balance Sheet take all necessary and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain claim any refund or credit to which such Party is entitled under this subparagraph (iii)refund.
(ive) Buyer shall be liable for For federal income tax purposes, the parties agree to report any payments with respect to Section 2.4, Section 6.1, Section 8.1 and pay, and pursuant Section 8.2 as an adjustment to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementConsideration.
Appears in 2 contracts
Samples: Contribution Agreement (Shell Midstream Partners, L.P.), Contribution Agreement
Liability for Taxes. (ia) Seller TPI shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify indemnify, defend and hold Newco harmless each Buyer Group Member from and against against, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on or with respect to the Company Contributed Subsidiaries, or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 their respective assets, operations or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable activities for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent that any such refund Taxes are a Current Liability and are reflected on the Final Working Capital Statement.
(b) Newco shall be liable for, and shall indemnify, defend and hold TPI harmless from and against, any and all Taxes imposed on or credit arises with respect to the Contributed Subsidiaries or their respective operations, ownership, assets or activities for any Post-Closing Period.
(c) Tax items shall be apportioned between Pre-Closing Periods and Post-Closing Periods based on a closing of the books and records of the relevant entity or entities as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included (provided that (i) depreciation, amortization and depletion for any Straddle Period shall be apportioned on the Closing Date Balance Sheet a daily pro rata basis and taken into account in determining the Adjusted Purchase Price(ii) any Taxes imposed on a periodic basis (including real property Taxes, but not including Taxes based on income and receipts) for any Straddle Period shall be apportioned on a daily pro rata basis). Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant Notwithstanding anything to the prior sentence within fifteen (15) days of contrary in the receipt or recognition of preceding sentence, the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Sellerparties agree that for U.S. federal income Tax purposes, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns items for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer any Straddle Period shall be entitled apportioned between Pre-Closing Periods and Post-Closing Periods in accordance with U.S. Treasury Regulation Section 1.1502-76(b), which regulation shall be reasonably interpreted by the parties in a manner intended to achieve the method of apportionment described in the preceding sentence. Neither TPI nor PCA will exercise any refund option or credit with respect to Taxes election (including any interest relating theretoelection to ratably allocate a Tax year's items under Treasury Regulation Section 1.1502-76(b)(2)(ii)) that results from the carryback of losses, credits or similar to allocate Tax items from in a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under manner inconsistent with this subparagraph (iii)section.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Contribution Agreement (Tenneco Inc /De), Contribution Agreement (Pca Valdosta Corp)
Liability for Taxes. (i) Seller Each of the Sellers shall be jointly and severally liable for and shall pay, and pursuant to ARTICLE XI Article VII shall jointly and severally indemnify and hold harmless each Buyer Group Member (and the Company) from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company Company, or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (Date. The Sellers hereby waive any right to receive any payment or distribution of cash or assets from the “Pre-Closing Tax Period”)Company under the Limited Liability Company Agreement or otherwise, except, including the right to receive any distribution or payment in each case, to connection with the extent such payment of any Taxes were included on for which the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceSellers are or become liable.
(ii) The Company shall be liable for and shall pay, and pursuant to Article VII Buyer shall indemnify the Sellers against, all Taxes imposed on the Company for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date; provided, however, that the Company shall not be liable for or pay, and Buyer shall not indemnify the Sellers against, any Taxes for which the Sellers are liable under this Agreement (including, without limitation, Section 4.7 and Section 6.2(a)(i)).
(iii) For purposes of paragraph Sections 6.2(a)(i) and (a)(ia)(ii), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and Date, and, subject to paragraph (a)(iv) of this Section 6.1, items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiiiv) Seller Notwithstanding anything herein to the contrary, each of the Sellers shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer jointly and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be severally liable for and shall pay, and pursuant to ARTICLE XI Article VII shall jointly and severally indemnify and hold harmless Seller each Buyer Group Member from and against any and all Losses incurred by Seller in connection with or arising from against, any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement
Liability for Taxes. (i) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold Buyer harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year period, or period that ends portion thereof, ending on or before the Closing Date Date. Buyer shall be liable for, and the portion of shall indemnify and hold Seller harmless from any Straddle Period ending Taxes imposed on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two any taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate. Buyer shall pay, or cause agrees to be paid, pay to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen refund received (15) days of the receipt or recognition of the applicable refund or credit whether by Buyer or its Subsidiaries. To the extent requested by Sellerpayment, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before offset or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating theretootherwise) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and by Buyer or Company, in respect of any Taxes for which Seller is attributable liable hereunder. Seller agrees to the Company andpay to Buyer any refund received (whether by payment, credit, offset or otherwise) by Seller in respect of any Taxes for which Buyer is liable hereunder. The parties shall cooperate in order to the extent take all necessary steps to claim any such refund. Any such refund is actually received by Seller a party or its Affiliates, any such refund or credit affiliate for the account of the other party shall be paid by Seller to Buyer such other party within fifteen thirty (1530) days of the receipt of such refund by Sellerreceipt. Buyer shall be entitled to any refund Any sales, use, real property transfer, or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or similar taxes arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementAgreement shall be the responsibility of Buyer except as otherwise specified herein, such as any applicable stock transfer tax (which shall be the responsibility of Seller). All income and deductions of Company for periods ending on or prior to the Closing Date will be included in the consolidated federal income tax returns of Dover’s consolidated tax group. Buyer and Company, shall cooperate with Dover and shall make available all necessary records and timely take all action necessary to allow Dover or its affiliates to prepare and file its returns. In the event Buyer or Seller (the “Receiving Party”) receives notice of any examination, claim, adjustment, or other proceeding with respect to the liability of Company for Taxes for any period for which the other party is or may be liable hereunder(the “Liable Party”) the Receiving Party shall immediately notify the Liable Party in writing and the Liable Party shall be entitled at its expense to control or settle the contest of such examination, claim, adjustment, or other proceeding, provided it may not, without the consent of the Receiving Party agree to any settlement which could result in an increase in the amount of Taxes for which the Receiving Party is liable hereunder. The parties shall cooperate with each other and will consult with each other, in the negotiation and settlement of any proceeding. The parties will preserve and retain all returns, schedules, work papers and all material records or other documents relating to any such returns, claims, audits, or other proceedings until the expiration of the statutory period of limitations (including extensions) of the taxable periods to which such documents relate and until the final determination of any payments which may be required with respect to such periods under this Agreement and shall make such documents available at the then current administrative headquarters of such party to the other party upon reasonable notice and at reasonable times, it being understood that such representatives shall be entitled to make copies of any such books and records relating to Company and interview employees as they shall deem necessary.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Dover Motorsports Inc)
Liability for Taxes. (ia) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify indemnify, defend and hold harmless each Buyer Group Member from and against against, any Taxes imposed on the Company, or for which the Company may otherwise be liable (i) for any Pre-Closing Taxable Periods and, with respect to any Straddle Period, the portion of such Straddle Period ending on and all Losses including the Closing Date; (ii) resulting from a breach of the representations and Expenses incurred warranties set forth in Section 3.11 (determined without regard to any materiality or Knowledge qualifiers or any scheduled items) or covenants set forth in Section 5.7 or this Article 7; (iii) of any member of any Affiliated Group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date by such Buyer Group Member reason of Treasury Regulation § 1.1502-6(a) or any analogous or similar foreign, state or local law; or (iv) of any other Person for which the Company is or has been liable as a transferee or successor, by contract or otherwise; provided, however, that Seller shall not be liable for or pay any Taxes (x) included in connection with the calculation of Final Closing Working Capital or arising from (Ay) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member any transaction other than in the ordinary course of a Company Group (including Taxes business occurring on the Closing Date and after the Closing that is properly allocable for which any Income Tax purposes to the portion of the Closing Date after the Closing. Buyer shall not, and shall not permit the Company may be liable pursuant to Treasury Regulation § 1.1502to, make any tax election after the Closing that would increase the Income Tax liability of the Company for any Pre-6 Closing Taxable Period (or similar provisions of stateportion thereof), local or foreign law as a result of having been a member of a Company Group and Buyer shall indemnify and hold harmless Seller from and against any liability for Income Taxes resulting from any such action or election. Seller will be entitled to retain, or to receive prompt payment from Buyer or the ceasing to be a member Company of any Company Grouprefund or credit (when actually realized) for the overpayment of Taxes (including for this purpose any over-accrual in Final Closing Working Capital) for which Seller is responsible pursuant to this Section 7.1(a), plus any interest received or credited with respect thereto from the relevant taxing authorities. Buyer and Seller shall reasonably cooperate with respect to claiming any refund or credit with respect to Taxes referred to in this Section 7.1(a).
(Bb) Except as otherwise provided in Section 7.1(a) or otherwise herein, the Buyer shall be liable for and pay, and shall indemnify, defend and hold harmless the Seller from and against, all Taxes imposed on the Company Company, or for which the Company may otherwise be liable liable, for any taxable year or period that ends on or before the Post-Closing Date and Taxable Periods and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including beginning after the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(iic) For purposes of paragraph (a)(iSection 7.1(a) and Section 7.1(b), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined as follows:
(i) in the case of Taxes that are either (A) based upon or related to income or receipts, or (B) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible), by assuming that the Straddle Period consisted of two taxable years or periods, one of which ended at the close of the Closing Date and the other of which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to transactions other than in the amount ordinary course of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included business occurring on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant that are properly allocable to the prior sentence within fifteen (15) days portion of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To after the extent such refund or credit is subsequently disallowed or required to Closing shall be returned allocated to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after is deemed to begin at the beginning of the day following the Closing Date; and
(ii) in the case of Taxes that are imposed on a periodic basis with respect to the assets or capital of the Company, deemed to be the amount of such Taxes for the entire Straddle Period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is the number of calendar days in the portion of the period ending on and including the Closing Date and the denominator of which is attributable the number of calendar days in the entire period.
(d) Notwithstanding anything to the Company andcontrary contained herein, Buyer and Seller will share equally any sales, use, transfer, stamp, documentary or similar Taxes (including any penalties and interest, but excluding any Income Taxes) incurred in connection with the sale of the Shares pursuant to this Agreement. Buyer will be responsible for preparing and timely filing (and Seller will cooperate with Buyer in preparing and filing) any forms required with respect to any such Taxes. Buyer will provide to Seller a true copy of each such return as filed and evidence of the extent timely filing thereof and payment by Buyer of the Tax shown to be due on any such refund is actually received return and be reimbursed by Seller or its Affiliates, for fifty percent (50%) of any such refund or credit shall be Tax paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceBuyer. Buyer and Seller shall take reasonable steps as may be requested by cooperate in good faith to minimize, to the other Party to obtain extent permissible under Law, the amount of any refund or credit to which such Party is entitled under this subparagraph (iii)Taxes.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pinnacle Airlines Corp), Stock Purchase Agreement (Pinnacle Airlines Corp)
Liability for Taxes. (ia) The Seller Responsible Parties shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and the Buyer, for (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (Aas defined below) Taxes imposed on the Company Seller, or for which the Company Seller may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date (“Pre-Closing Tax Periods”) and, with respect to any portion of a taxable year or period beginning before and ending after the Closing Date (“Straddle Period”), the portion of any such Straddle Period ending on and including the Closing Date Date, and (ii) all liabilities imposed on the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included Seller on or before the Closing Date Balance Sheet and taken into account in determining under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law) for Taxes of the Adjusted Purchase PriceSeller or any other corporation which is affiliated with the Seller (other than the Seller).
(iib) The Buyer shall be liable for, and shall indemnify the Seller and its Affiliates for, all Taxes imposed on the Seller or any of its Affiliates with respect to the Seller for any taxable year or period that begins after the Closing Date and, with respect to a Straddle Period, the portion of such Straddle Period beginning after the Closing Date.
(c) For purposes of paragraph (a)(i)this Section 7.1, whenever it is necessary to determine the liability for Taxes of the Company Seller for a portion of a Straddle Period:
(i) real, personal and intangible property Taxes (“Property Taxes”) for the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the determination numerator of which is the Taxes number of the Company for the portion of days during the Straddle Period ending on that are in the Pre-Closing Tax Period and including the denominator of which is the number of days in the Straddle Period; and
(ii) all other Taxes for the Pre-Closing Date Tax Period shall be determined by assuming that the Straddle Period consisted of two Seller had a taxable years year or periods, one which period that ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Forefront Holdings, Inc.), Asset Purchase Agreement (Forefront Holdings, Inc.)
Liability for Taxes. (ia) Seller Except as otherwise provided in Section 4.3, Lucent shall be liable for all Taxes (i) imposed on Lucent and payits Affiliates, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) other than Taxes imposed on the Company Acquired Companies or for which the Company Acquired Companies may otherwise be liable liable, for any taxable year, (ii) imposed on the Acquired Companies, or for which the Acquired Companies may otherwise be liable, solely as a result of having been a member being members of a Company the Lucent Group (including Taxes which for which purposes of this sentence includes the Company may be liable Acquired Companies) pursuant to Treasury Regulation § Regulations Section 1.1502-6 or similar provisions of analogous state, local or foreign law as a result of having been a member of a Company Group and laws for any Taxes resulting from the ceasing to be a member of any Company Grouptaxable year, or (iii) and (B) Taxes imposed on the Company Acquired Companies, or for which the Company Acquired Companies may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, including any Code Section 481 adjustments resulting from a change of accounting method by the Acquired Companies prior to the extent such Taxes were included on close of the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(iib) Lucent shall be entitled to any refund of Taxes for which it is liable pursuant to this Section 1.1.
(a) Paradyne shall be liable for all Taxes imposed on the Acquired Companies, or for which the Acquired Companies may otherwise be liable, for any Post-Closing Tax Period.
(b) Paradyne shall be entitled to any refund of Taxes for which it is liable pursuant to this Section 1.2.
1.3 For purposes of paragraph (a)(i)this Agreement, whenever it is necessary to determine the liability for Taxes of the Company Acquired Companies for a portion of any Straddle Period, the determination of the Taxes of the Company Acquired Companies for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one of which ended at the close of the Closing Date and the other of which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company Acquired Companies for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” books" basis by assuming that the books of the Company Acquired Companies were closed at as of the close of the Closing Date, : provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, basis shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Tax Matters Agreement (Globespan Semiconductor Inc), Tax Matters Agreement (Paradyne Corp)
Liability for Taxes. (ia) Seller Oncor shall be liable for and payresponsible for, and pursuant to ARTICLE XI shall indemnify and hold SDTS harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from against, (Ai) Taxes imposed on relating to Oncor AssetCo, the Company Subject Oncor Operations or for the Oncor T Assets which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant are attributable to Treasury Regulation § 1.1502any Pre-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date Tax Period and the portion of any Straddle Period ending on and including the Closing Date Date, (ii) Taxes resulting from the “Oncor Pre-Closing Contribution, (iii) Taxes relating to SDTS AssetCo, the Subject SDTS Operations or the SDTS Assets which are attributable to any Post-Closing Tax Period and the portion of any Straddle Period beginning on the day immediately after the Closing Date, (iv) those Transfer Taxes borne by Oncor pursuant to Section 11.03(b) and (c) and (v) (without duplication) any Taxes attributable to a Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for Period or the portion of the a Straddle Period ending on and including the Closing Date and resulting from a breach by the Oncor Entities of any Oncor Tax Representation or any of their covenants contained in this Article XI. Notwithstanding anything in this Section 11.01 or otherwise in this Agreement to the contrary, Oncor shall have no liability to SDTS for (x) Taxes to the extent such Taxes were included as a liability in calculating the Oncor Working Capital Package, (y) Taxes arising from actions taken by or at the direction of SDTS on the Closing Date after the Closing outside the ordinary course of business and (z) Taxes resulting from a breach by SDTS of the covenants in Section 11.02(e).
(b) Oncor shall be determined by assuming that responsible for, and shall indemnify and hold SU harmless from and against, (i) Taxes relating to SU AssetCo, the Subject SU Operations or the SU Assets which are attributable to any Post-Closing Tax Period and the portion of any Straddle Period consisted of two taxable years or periods, one which ended at beginning on the close of day immediately after the Closing Date and (ii) those Transfer Taxes borne by Oncor pursuant to Section 11.03(e).
(c) SDTS shall be responsible for, and shall indemnify and hold Oncor harmless from and against, (i) Taxes relating to SDTS AssetCo, the other Subject SDTS Operations or the SDTS Assets which began at are attributable to any Pre-Closing Tax Period and the beginning portion of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the any Straddle Period shall be allocated between such two taxable years or periods ending on a “closing of the books basis” by assuming that the books of the Company were closed at the close of and including the Closing Date, provided(ii) Taxes resulting from the SDTS Pre-Closing Merger, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled Taxes relating to Oncor AssetCo, the amount Subject Oncor Operations and the Oncor T Assets which are attributable to any Post-Closing Tax Period and the portion of any refund Straddle Period beginning on the day immediately after the Closing Date, (iv) those Transfer Taxes borne by SDTS pursuant to Section 11.03(a) and (c) or credit of (v) (without duplication) any Taxes of the Company (including any interest relating thereto) with respect attributable to a Pre-Closing Tax Period or the portion of a Straddle Period ending on and including the Closing Date and resulting from a breach by the SDTS Entities of any SDTS Tax Representation or any of their covenants contained in this Article XI. Notwithstanding anything in this Section 11.01 or otherwise in this Agreement to the contrary, SDTS shall have no liability to Oncor for (x) Taxes to the extent that such Taxes were included as a liability in calculating the SDTS Working Capital Package, as finally determined pursuant to Section 1.06, (y) Taxes arising from actions taken by or at the direction of Oncor on the Closing Date after the Closing outside the ordinary course of business and (z) Taxes resulting from a breach by Oncor of the covenants in Section 11.02(e).
(d) SU shall be responsible for, and shall indemnify and hold Oncor harmless from and against, (i) Taxes relating to SU AssetCo, the Subject SU Operations or the SU Assets which are attributable to any Pre-Closing Tax Period and the portion of any Straddle Period ending on and including the Closing Date, (ii) Taxes resulting from the SU Pre-Closing Merger, (iii) those Transfer Taxes borne by SU pursuant to Section 11.03(d) and (e) or (iv) (without duplication) any Taxes attributable to a Pre-Closing Tax Period or the portion of a Straddle Period ending on and including the Closing Date and resulting from a breach by the SU Entities of any SU Tax Representation or any of their covenants contained in this Article XI. Notwithstanding anything in this Section 11.01 or otherwise in this Agreement to the contrary, SU shall have no liability to Oncor for (x) Taxes to the extent that such Taxes were included as a liability in calculating the SU Working Capital Package, as finally determined pursuant to Section 2.04, (y) Taxes arising from actions taken by or at the direction of Oncor on the Closing Date after the Closing outside the ordinary course of business, and (z) Taxes resulting from a breach by Oncor of the covenants in Section 11.02(e).
(e) Taxes attributable to the portion of a Straddle Period ending on or prior to the Closing Date, and to the portion of the Straddle Period beginning after the Closing Date, shall be determined as follows: (i) in the case of property and other ad valorem Taxes, such Tax shall be prorated based on the number of days in the Straddle Period up to and including the Closing Date, and the number of days in the Straddle Period occurring after the Closing Date, and (ii) to the extent such Taxes were paid Tax is measured by income or receipts or otherwise not described in clause (i) above, such Tax shall be allocated based on a closing of the Company prior to books as of the end of the Closing Date; provided that exemptions, allowances or by a Seller after deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on and including the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including Date and the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant proportion to the prior sentence within fifteen (15) number of days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)each period.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Oncor Electric Delivery Co LLC), Merger Agreement (InfraREIT, Inc.)
Liability for Taxes. 11.5.1 The Borrower and/or the Guarantors (ias applicable) Seller shall make all payments to be made by it without any Tax deduction, unless a Tax deduction is required by law. The Borrower and/or the Guarantors (as applicable) shall promptly upon becoming aware that it must make a Tax deduction (or that there is any change in the rate or the basis of a Tax deduction) notify the Lender.
11.5.2 If a Tax deduction is required by law to be made by the Borrower and/or the Guarantors (as applicable), the amount of the payment due from the Borrower shall be liable for increased to an amount which (after making any Tax deduction) leaves an amount equal to the payment which would have been due if no Tax deduction had been required.
11.5.3 If the Borrower and/or the Guarantors (as applicable) is required to make a Tax deduction, the Borrower shall make that Tax deduction and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member payment required in connection with or arising from (A) Taxes imposed on that Tax deduction within the Company or for which time allowed and in the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Priceminimum amount required by law.
11.5.4 Within thirty (ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (1530) days of making either a Tax deduction or any payment required in connection with that Tax deduction, the receipt or recognition of Borrower and/or the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned Guarantors (as applicable) shall deliver to the applicable Governmental BodyLender evidence reasonably satisfactory to it that the Tax deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
11.5.5 If an Obligor makes an increased payment under this Clause 11.5 and:
(a) a credit against, Seller agrees promptly to repay the amount relief or remission for, or repayment of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes tax (including any interest relating theretoa “Tax Credit”) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company payment; and
(b) the recipient of the grossed-up payment has obtained, utilised and fully retained that Tax Credit on an affiliated group basis, the Lender will pay to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days relevant Obligor an amount which will leave the recipient of the receipt of interest payment (after the payment) in the same after-tax position as that in which it would have been had the gross-up payment under this Clause 11.5 not been made. Where a deduction or withholding is required to be made under this clause, the Lender shall give such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps assistance as may be requested necessary or expedient to enable the Borrower to claim exemption from or a reduction in the amounts that are required to be withheld and the Parties shall use reasonable endeavours to ensure that such exemption or reduction is claimed. Such assistance shall include the provision by the other Party Lender of such forms as the relevant tax authority may require the Borrower to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)complete.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Albireo Pharma, Inc.)
Liability for Taxes. (i) Parent and Seller shall be liable for and pay, and pursuant to ARTICLE XI shall Article X (and subject to the limitations thereof) agree to indemnify and hold harmless each Buyer Group Member from and against against, any Taxes imposed in respect of the Company for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and all Losses including the Closing Date; provided, however, that Parent and Expenses incurred by such Seller shall not be liable for or pay, and shall not indemnify or hold harmless Buyer Group Member in connection with or arising from and against, (A) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet, to the extent that any such liability or reserve reduces Working Capital and (B) any Taxes imposed on in respect of the Company or for which the Company may otherwise be liable as a result of having been a member transactions occurring on the Closing Date that are properly allocable to the portion of a Company Group the Closing Date after the Closing (including Taxes for which the Company may be liable pursuant described in this proviso, hereinafter "Excluded Taxes"). Buyer and Seller agree that, with respect to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and transaction described in clause (B) Taxes imposed on of the preceding sentence, the Company or for which and all persons related to the Company may otherwise under Section 267(b) of the Code immediately after the Closing shall treat the transaction for all federal income Tax purposes, and (to the extent permitted) for other income Tax purposes, as occurring at the beginning of the day following the Closing Date. Seller shall be liable for entitled to any refund of (or credit for) Taxes allocable to any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(ii) For purposes of paragraph (a)(iSections 7.1(a)(i), whenever it is necessary to determine the liability Liability for Taxes in respect of the Company for a Straddle Period, the determination of the such Taxes of the Company for the portion of the Straddle Period (A) ending on and including (the "Pre-Closing Period"), and (B) the portion of the Straddle Period beginning after (the "Post-Closing Period"), in each case, the Closing Date Date, shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company or with respect to the Unit for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that (i) Liability for Taxes in respect of real and personal property shall be apportioned to the Pre-Closing Period based on the number of days in such Pre-Closing Period divided by the number of days in the entire Straddle Period; and (ii) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to If, as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction, credit or amount of any refund or credit of Taxes Tax that results in an increase in a Tax Liability for which Parent and Seller would otherwise be liable pursuant to Section 7.1(a)(i), and such change results in a decrease in the Tax Liability of the Company Company, Buyer or any Affiliate or successor thereof (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by Affiliate or successor thereof that holds any interests in the Company prior to the Closing that is a limited liability company or by a Seller after the Closing pursuant to Section 8.2(apartnership for tax purposes) for any taxable year or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on for the portion of any Straddle Period beginning after the Closing Date Balance Sheet Date, Parent and taken into account in determining the Adjusted Purchase Price. Buyer Seller shall pay, or cause to not be paid, to Seller any amount to which Seller is entitled liable pursuant to the prior sentence within fifteen (15such Section 7.1(a)(i) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, such increase to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)decrease.
(iv) Notwithstanding anything herein to the contrary, each of Buyer and Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from the other party against, fifty percent (50%) of any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock stock, unit or asset transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
(v) Seller shall pay Buyer for the Taxes that Seller is liable pursuant to this Section 7.1(a) but which are payable with any Tax Return to be filed by Buyer or its Affiliates upon the written request of Buyer, setting forth in detail the computation of the amount owed by Seller or Buyer, but in no event earlier than 10 Business Days prior to the due date for paying such Taxes.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Marquee Holdings Inc.), Unit Purchase Agreement (Amc Entertainment Inc)
Liability for Taxes. (ia) Except to the extent such Taxes are accrued as a liability on the Closing Date Balance Sheet, Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify indemnify, defend and hold harmless each Buyer Group Member Buyer, HBI, the HBI Subsidiaries and their Affiliates from, (i) any Taxes due from and against Seller caused by the sale of the HBI Shares; (ii) any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for incurred by HBI or any HBI Subsidiary (or any consolidated group of which the Company may otherwise be liable as a result of having been HBI or any HBI Subsidiary is a member with respect to the taxable items of HBI or any HBI Subsidiary (a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company "Group")) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends ending on or before the Closing Date (or the portion, determined as described in paragraph (c) of this Section 10.01, of any such Taxes for any taxable period beginning on or before and ending after the Closing Date which is allocable to the portion of any Straddle Period ending such period occurring on and including or before the Closing Date (the “"Pre-Closing Tax Period”")); and (iii) any attorneys' fees or other costs incurred by Buyer, exceptHBI, the HBI Subsidiaries, or any Affiliate thereof in each caseconnection with any payment from Seller under this Section 10.01(a).
(b) Buyer shall be liable for, and shall indemnify, defend and hold harmless Seller and its Affiliates from, (i) any Taxes imposed on or incurred by or with respect to HBI or any HBI Subsidiary for which Seller is not liable under Section 10.01(a); and (ii) any attorneys' fees or other costs incurred by Seller or any Affiliate thereof in connection with any payment from Buyer under this Section 10.01(b).
(c) Whenever it is necessary for purposes of Section 10.01(a) or Section 10.01(b) to determine the extent such portion of any Taxes were included imposed on or incurred by HBI or any HBI Subsidiary (or any Group) for a taxable period beginning on or before and ending after the Closing Date Balance Sheet and taken into account in determining which is allocable to the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Pre-Closing Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined made, in the case of property, ad valorem or similar Taxes (which are not measured by, or based upon, production) or franchise or capital Taxes (which are not measured by, or based upon, net income), on a per diem basis, and, in the case of other Taxes, by assuming that the Straddle Pre-Closing Period consisted constitutes a separate taxable period of two HBI or the HBI Subsidiary and by taking into account the actual taxable years events occurring during such period (except that exemptions, allowances and deductions for a taxable period beginning on or periods, one which ended at the close of before and ending after the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.annual
Appears in 2 contracts
Samples: Purchase Agreement (Wedge Group Inc), Purchase Agreement (Chicago Bridge & Iron Co N V)
Liability for Taxes. (i) Seller Except as provided in Section 7.5(iv) or for Taxes included in the Final Net Asset Value, Sellers shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and against, all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on any of Sellers or their Tax Affiliates (other than the Company Companies) for any taxable year or for which period that ends on or before the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateClosing Date, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on or with respect to the Company Companies, the Assets or the Business or for which the Company Companies, or the Business may otherwise be liable for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (including, without limitation, any obligation to contribute to the “Pre-Closing payment of a Tax Period”determined on a consolidated, combined or unitary basis with respect to the Companies and any of Sellers' Tax Affiliates) and (C) Taxes relating to the Companies, the Assets or the Business attributable to any breach of warranty or misrepresentation under clauses (vii), except(ix), in each case(x), to the extent such Taxes were included on the Closing Date Balance Sheet (xi) and taken into account in determining the Adjusted Purchase Price(xii) of paragraph (a), and paragraph (b), of Section 4.6 hereof.
(ii) Buyer shall be liable for, and shall indemnify Sellers against, Taxes imposed on or with respect to the Companies, the Assets, the Business or Buyer for any taxable year or period that begins after the Closing Date and with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date (including, without limitation, any obligation to contribute to the payment of a Tax determined on a consolidated, combined or unitary basis with respect to Buyer and its Tax Affiliates).
(iii) For purposes of paragraph paragraphs (a)(i)) and (a)(ii) above, whenever it is necessary to determine the liability for Taxes of relating to the Company Companies, the Assets or the Business for a Straddle Period, the determination of the Taxes of relating to the Company Companies, the Assets or the Business for the portion of the Straddle Period ending on on, and including the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of on the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of incomerelating to the Companies, gain, deduction, loss the Assets or credit of the Company Business for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company Companies and the Business were closed at the close of business on the Closing Date, provided, however, that Taxes imposed on a periodic basis with respect to the assets of the Companies or the Assets (or otherwise measured by the level of any item), and any exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any Any and all Losses incurred by Seller in connection with or arising from any real property transfer or real property transfer gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated sale to Buyer of the Shares and the Assets hereunder shall be paid 50% by this AgreementBuyer and 50% by Sellers; provided that any such liability relating to value added taxes shall be paid by Buyer to the extent Buyer is entitled to recovery thereof.
(v) Buyer shall pay to Seller the amounts of any refund, abatement or credit of Taxes received related to the Business which are attributable to (A) any taxable period that ends on or before the Closing Date, (B) in the case of any taxable period that begins before and ends after the Closing Date, to the extent such amounts do not exceed the amount of the refund, abatement or credit of Taxes that would have been made had the taxable period ended on the Closing Date, or (C) Taxes for which Seller has previously indemnified Buyer. Notwithstanding the foregoing, Buyer shall not be obligated to pay Seller the amount of any refund, abatement or credit of Taxes that was reflected as an asset on the Closing Statement.
Appears in 2 contracts
Samples: Purchase Agreement (Basf Aktiengesellschaft /Fa/), Purchase Agreement (American Home Products Corp)
Liability for Taxes. (a) The Parent shall be liable for and pay, or shall cause the applicable Seller to pay, and shall indemnify, defend, and hold harmless the Acquiror Indemnified Parties (as defined in Section 10.02(a)) from and against, all Taxes and Losses imposed on or incurred by any Acquiror Indemnified Party, or for which any Acquiror Indemnified Party may otherwise be liable, relating to (i) Seller any Taxes imposed upon any Company or any Transferred Subsidiary with respect to any Pre-Closing Taxable Period and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (ii) any Taxes imposed upon any Company or any Transferred Subsidiary or any Successor Entity with respect to any Post-Closing Taxable Period or, with respect to any Straddle Period, the portion of such Straddle Period ending after the Closing Date, that would not be payable by, or imposed upon, such Company or such Transferred Subsidiary or such Successor Entity if any amount of net operating losses or credits generated during the Parent or its Affiliates’ period of ownership of the applicable Company or Transferred Subsidiary as of the Closing Date had not been decreased as a result of any Tax audits or proceedings by any Tax Authority, except to the extent any such decrease in net operating losses or credits (A) is expected to give rise to a Tax benefit to any Company or any Transferred Subsidiary or any Successor Entity in a Post-Closing Taxable Period or, with respect to any Straddle Period, the portion of such Straddle Period ending after the Closing Date, (B) is caused by an action taken by or transaction entered into by the Acquiror or its Affiliates other than those contemplated by the Transaction Agreements (excluding, for the avoidance of doubt, any reorganization or other transfer of the interests or assets of the Companies or the Transferred Subsidiaries by the Acquiror or any of its Affiliates following the Closing) or (C) is a result of the carryback of any item from a Post-Closing Taxable Period or with respect to the portion of any Straddle Period relating to after the Closing Date, (iii) any breach or inaccuracy in any representation contained in Section 3.20 or (iv) any breach or failure by the Parent to perform (or cause to be performed) any of the covenants or agreements set forth in this Article VII; provided, however, that the Parent shall not be liable for or pay, and shall not indemnify the Acquiror Indemnified Parties from and against (A) any Taxes shown as an accrued tax payable on the Final Actual Closing Solvency Capital Worksheet, and (B) any Taxes imposed on any Company or Transferred Subsidiary, or for which any Company or Transferred Subsidiary may otherwise be liable, as a result of transactions occurring or deemed to occur on the Closing Date but after the Closing (other than those contemplated by the Transaction Agreements (excluding, for the avoidance of doubt, any reorganization or other transfer of the interests or assets of the Companies or the Transferred Subsidiaries by the Acquiror or any of its Affiliates following the Closing) or occurring in the Ordinary Course of Business) (Taxes described in clauses (A) and (B) above, hereinafter “Excluded Taxes”).
(b) The Acquiror shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify indemnify, defend, and hold harmless each Buyer Group Member the Parent Indemnified Parties from and against any and against, (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) liabilities for Taxes imposed on the any Company or Transferred Subsidiary, or for which the any Company or Transferred Subsidiary may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Post-Closing Date and Taxable Periods and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including beginning after the Closing Date Date, (ii) Excluded Taxes and (iii) any breach or failure by the “Pre-Closing Tax Period”), except, Acquiror to perform (or cause to be performed) any of the covenants or agreements set forth in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Pricethis Article VII.
(iic) For purposes of paragraph clauses (a)(i)a) and (b) of this Section 7.01, whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the any Company or Transferred Subsidiary for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the such Company or Transferred Subsidiary for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the such Company or Transferred Subsidiary were closed at the close of the Closing Date, provided, however, that Taxes imposed on a periodic basis (e.g., property taxes), and exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiid) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating theretoi) with respect to a Pre-Closing Tax Period to To the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing any indemnity pursuant to Section 8.2(a7.01(a)(i), Section 7.01(a)(iii) or ARTICLE XI which refund or credit Section 7.01(a)(iv) is actually recognized by Buyer or its Affiliates (including includible in income, the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of Parent shall increase such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned indemnity payment to the applicable Governmental Body, Seller agrees promptly Acquiror Indemnified Party to repay compensate for the amount Japanese Tax detriment resulting from such inclusion (the aggregate of such refund or credit indemnity payment and such increase, a “Tax Indemnity Payment”); provided, however, that Parent and Acquiror shall cooperate to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable direct payment to the Company andParent or a Seller on one hand, and the Acquiror or a Designated Acquiror on the other hand, as the case may be, if doing so would result in the Tax Indemnity Payment’s being treated as an adjustment to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Share Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Prudential Financial Inc)
Liability for Taxes. 7.5.1 The Seller will be solely responsible for the following Taxes (collectively, the “Pre-Closing Tax Liabilities”): (i) Seller shall be liable for all Taxes imposed upon the Seller, (ii) all Taxes imposed upon the Company with respect to Pre-Closing Tax Periods and paywhich are attributable to operations of the Company prior to the Closing Date; and (iii) with respect to Straddle Periods (if any), and all Taxes imposed upon the Company which are allocable, pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against Section 7.5.3, to the Pre-Closing portion of such Straddle Period.
7.5.2 The Company will be solely responsible for any and all Losses and Expenses incurred by such Buyer Group Member in connection with Taxes (collectively, the “Post-Closing Tax Liabilities”) of, or arising from (A) Taxes imposed on payable by, the Company or for that do not constitute Pre-Closing Tax Liabilities, including without limitation, in the case of Taxes with respect to a Straddle Period, all Taxes which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable are allocable, pursuant to Treasury Regulation § 1.1502-6 Section 7.5.3, to the portion of such taxable year or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and period commencing after the Closing Date.
7.5.3 In order to apportion appropriately any income Taxes resulting from the ceasing relating to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends includes a Straddle Period, the parties will, to the extent permitted under applicable Laws, consider the Closing Date as the last day of the taxable year or period of the Company. In the case of any Straddle Period, the portion of any income Taxes that is allocable to the portion of the Pre-Closing portion of such Straddle Period will be deemed equal to the amount that would be payable if the taxable year or period ended on the Closing Date based on the actual operations of the Company through and as of the Closing Date (except that, solely for purposes of determining the marginal tax rate applicable to income during such period in a jurisdiction in which such tax rate depends upon the level of income, annualized income shall be taken into account, for an equitable sharing of such income Taxes) and the books of the Company will be deemed to be closed as of the close of business on the Closing Date. For purposes of computing the income Taxes attributable to the two portions of a Straddle Period, the amount of any item that is taken into account only once for a taxable period (e.g., the benefit of graduated tax rates, exemption amounts, etc.) shall be allocated between the two portions of the Straddle Period in proportion to the number of days in each portion. In order to apportion appropriately any Taxes (other than income Taxes) relating to any taxable year or before period that includes a Straddle Period, the portion of such Tax which relates to the Pre-Closing portion of such Straddle Period shall be deemed to be the amount of such Tax for the entire Tax period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on the Closing Date and the portion denominator of any Straddle Period ending on and including which is the Closing Date (number of days in the “Pre-Closing entire Tax Period”), except, in each case, period. All determinations necessary to give effect to the extent such Taxes were included on allocation set forth in this Section 7.5.3 shall be made in a manner consistent with the Closing Date Balance Sheet and taken into account in determining prior practice of the Adjusted Purchase PriceCompany.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) 7.5.4 The Seller shall be entitled pay the Purchaser with regard to the amount of any refund or credit of Taxes of the Company its Section 7.5 indemnities within ten (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (1510) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results receiving notice from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Purchaser.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Measurement Specialties Inc), Stock Purchase Agreement (Measurement Specialties Inc)
Liability for Taxes. (i1) Seller shall be liable for and pay, shall hold Buyer and pursuant to ARTICLE XI shall indemnify and hold the Company harmless each Buyer Group Member from and against any and all Taxes and Losses with respect to any liability for or with respect to (i) any Taxes payable by or attributable to the Company and Expenses incurred its Subsidiaries or their assets and operations for periods (or portions thereof) ending on or prior to the Closing Date (except for any liability associated with transfer taxes for which Buyer is responsible under Section 5.3(g) hereof) except for the Balance Sheet Taxes (as defined in Section 5.3(b)(2)), treating for purposes of this Section 5.3 (in the case that the Closing Date is not the end of the taxable year under applicable law) the Closing Date as the end of a short taxable year, and determining the tax liability for such year (x) in the case of Income Taxes, as an amount equal to the amount of Income Taxes that would be payable if the period for which such Income Tax is assessed ended as of the end of the Closing Date, and (y) in the case of Taxes other than Taxes described in clause (x) hereof, as an amount equal to the amount of such Taxes for the entire period multiplied by such Buyer Group Member a fraction, the numerator of which is the number of calendar days in connection with or arising from the period ending as of the end of the day immediately preceding the Closing Date and the denominator of which is the number of calendar days in the entire period, (Aii) Taxes any Tax imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § Section 1.1502-6 with respect to the taxable income of any Affiliated Group (or similar provisions any corresponding provision of state, local or foreign law law), (iii) any tax caused by or resulting from an election pursuant to Section 338(h)(10) of the Code or any corresponding provision of state, local or foreign Law and (iv) any Tax allocation or Tax sharing or similar agreement, as a result transferee or successor, by contract or otherwise. Notwithstanding any other provision of having been a member of a this Agreement, the indemnification under this Section 5.3 shall not be subject to the indemnification limitations set forth in Section 9.5. Buyer shall prepare, and permit Seller to audit, such analyses as are reasonably requested by Seller to support any claim for indemnification under this Section.
(2) Buyer and the Company Group shall be liable for, and shall hold Verizon, GTE and Seller harmless from, (i) any and all Taxes resulting from the ceasing that become due or payable with respect to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable any of its Subsidiaries for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date, (ii) any and all Taxes (other than Income Taxes) that become due and payable with respect to the Company or its Subsidiaries for periods (or portions thereof) ending on or prior to the Closing Date to the extent reflected on the Closing Balance Sheet ("BALANCE SHEET TAXES"), and (iii) one half of all Taxes described in Section 5.3(g) hereof.
(3) Buyer shall not cause or such refund permit the Company or credit was included any of its Subsidiaries to take any action on the Closing Date Balance Sheet and taken into account in determining for the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days remaining part of the receipt or recognition day after the time of the applicable refund or credit by Buyer or its Subsidiaries. To Closing outside the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing ordinary course of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days business of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the Company, other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the than transactions contemplated by this AgreementAgreement and the agreements contemplated hereby (including the incurrence of additional indebtedness) relating to the Company that could give rise to any Tax liability to Verizon, GTE or Seller (including pursuant to any indemnity obligations hereunder), and shall, and shall cause the Company to, indemnify and hold Verizon, GTE and Seller harmless from any such Tax.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Tsi Finance Inc), Agreement of Merger (Tsi Finance Inc)
Liability for Taxes. 10.6.1 The Borrower shall make all payments to be made by it without any Tax deduction, unless a Tax deduction is required by law. The Borrower shall promptly upon becoming aware that it must make a Tax deduction (or that there is any change in the rate or the basis of a Tax deduction) notify the Lender.
10.6.2 Subject to Clause 10.6.5, if the Borrower is required to make any Tax deduction by law from any payment due under the Loan Documents, the payment due from the Borrower shall be increased to an amount equal to the amount which would have been due for payment if no Tax deduction had been required, reduced by any credit, relief or remission for, or repayment of such Tax deduction to which Lender (acting reasonably) determines it is both entitled to and, in the case of a credit, able to utilise. If such entitlement, utilisation and/or the amount thereof would only become known after the date of payment, Borrower will make its payment without taking into account any credit, relief or remission and Lender will repay to Borrower an amount equal to such credit, relief or remission once the Lender has (acting reasonably) determined such credit, relief or remission has been determined and, in the case of a credit, utilised.
10.6.3 If the Borrower is required to make a Tax deduction, the Borrower shall make that Tax deduction and any payment required in connection with that Tax deduction within the time allowed and in the amount required by law.
10.6.4 Within thirty (30) days of making either a Tax deduction or any payment required in connection with that Tax deduction, the Borrower shall deliver to the Lender evidence reasonably satisfactory to it that the Tax deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
10.6.5 A payment shall not be increased under Clause 10.6.2 by reason of a Tax deduction, if (i) Seller shall be liable the Lender has assigned, prior to the due date for and paypayment, and pursuant this Loan Agreement to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed an Assignee who is not a Qualifying Lender on the Company date of such assignment; or for which (ii) the Company may otherwise payment could have been made to the Lender without a Tax deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be liable a Qualifying Lender other than as a result of having been any change after the date it became a member Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority which is not a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes change resulting from the ceasing entry into effect of the Multilateral Convention to be a member of any Company Group) and Implement Tax Treaty Related Measures to prevent BEPS (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax PeriodMLI”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
10.6.6 The Lender shall, upon request, from the Borrower promptly provide it with such evidence as it may require (iiacting reasonably) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming show that the Straddle Period consisted of two taxable years or periods, one which ended Lender is at the close date of this Loan Agreement a company resident in the Closing Date and the United Kingdom as well as any other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will evidence reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party Borrower and necessary to establish that the Lender is a Qualifying Lender.
10.6.7 The Lender shall cooperate in completing any procedural formalities necessary for the Borrower to obtain any refund or credit authorisation to which such Party is entitled under this subparagraph (iii)make payments without or, as the case may be, with a reduced Tax deduction.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (MDxHealth SA), Loan Agreement (MDxHealth SA)
Liability for Taxes. (i) Seller The Member shall be liable for hold harmless and payindemnify each of the Parent Indemnitees from and against, and pursuant shall compensate and reimburse each of the Parent Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of the Parent Indemnitees or to ARTICLE XI shall indemnify which any of the Parent Indemnitees may otherwise directly or indirectly become subject at any time (regardless of whether or not such Damages relate to any third party claim) and hold harmless each Buyer Group Member that arise directly or indirectly from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection or as a result of or are directly or indirectly connected with or arising from (A) Taxes imposed on the Company any Group Company, or for which the any Group Company may is otherwise be liable liable, as a result of having been a member of a Company Group (during any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateClosing Date, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company a Group Company, or for which the a Group Company may is otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) Taxes imposed on a Parent Group Member as a result of such Parent Group Member being a United States shareholder (within the meaning of Section 951(b) of the Code) of any Group Company, to the extent such amounts are attributable to Subpart F income (within the meaning of Section 952(a) of the Code) of such Group Company arising in (or that, but for the limitation under 952(c) of the Code, would have arisen in) a taxable year of the Group Company ending on or prior to the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date and (D) Taxes imposed on any cancellation of indebtedness income arising as a result of the “Pre-Closing transactions contemplated by this Agreement; provided, however, that the Member shall not be liable for any Tax Period”), except, in each case, liability to the extent such Taxes were included on the Closing Date Balance Sheet and Tax liability is taken into account in determining computing the Adjusted Purchase PriceNet Working Capital Amount, as finally determined pursuant to Section 1.08.
(ii) For purposes of paragraph (a)(iSection 11.02(a)(i), whenever it is necessary to determine the liability Liability for Taxes of the a Group Company for a Straddle Period, the determination of the Taxes of the Group Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Group Company for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the Group Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as ad valorem and other similar Taxes imposed on property Taxes (“Property Taxes”), franchise based solely on capital, and depreciation deductions, shall be apportioned between such two (2) taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to . In determining whether a Pre-Closing Property Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period ending on or before the Closing Date or a Straddle Tax Period (or portion thereof) beginning after ), any Property Tax shall be deemed a Property Tax attributable to the Closing Date or such refund or credit was included taxable period specified on the Closing Date Balance Sheet and taken into account in determining relevant Property Tax xxxx . For purposes of Section 11.02(a)(i), whenever it is necessary to determine the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to liability for Taxes of a United States shareholder (within the prior sentence within fifteen (15meaning of Section 951(b) days of the receipt or recognition Code) of a controlled foreign corporation (within the meaning of Section 957 of the applicable refund or credit by Buyer or its Subsidiaries. To Code) attributable to amounts included in the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount income of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from United States shareholder under Section 951 of the carryback of losses, credits or similar items from a Code for the taxable year or period of such controlled foreign corporation that begins on or before and ends after the Closing Date, the determination of liability for any such Taxes shall be made by assuming that the taxable year or period of the controlled foreign corporation consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and is attributable to the Company and, to other of which began at the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days beginning of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on day following the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund relevant items of income, gain, deduction, loss or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer of the controlled foreign corporation shall be liable for and payallocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the controlled foreign corporation were closed at the close of the Closing Date; provided, and pursuant however, that Subpart F income (within the meaning of Section 952 of the Code) of the controlled foreign corporation shall be determined without regard to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on Section 952(c) of the transactions contemplated by this AgreementCode.
Appears in 2 contracts
Samples: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Liability for Taxes. (A) For purposes of this Agreement, Taxes attributable to any Straddle Period will be apportioned between the period of the Straddle Period that begins before the Closing Date and ends on and includes the Closing Date (the “Pre-Closing Straddle Period”) and the period of the Straddle Period that begins the day after the Closing Date and ends at the end of the Straddle Period (the “Post-Closing Straddle Period”) in accordance with this Section 6(d)(i)(A). The portion of Taxes attributable to a Pre-Closing Straddle Period shall (i) Seller in the case of any sales or use taxes, value-added taxes, employment taxes, withholding taxes and any other Tax based on or measured by income, business activity, receipts or profits earned during a Straddle Period, be deemed to equal the amount that would be payable if the Straddle Period ended on and included the Closing Date; and (ii) in the case of personal property, real property, ad valorem and other Taxes of the Company imposed on a periodic basis during a Straddle Period, be deemed to be the amount of the Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Pre-Closing Straddle Period and the denominator of which is the number of days in such Straddle Period. The portion of Taxes attributable to a Post-Closing Straddle Period shall be liable calculated in a corresponding manner. Any exemptions, allowances or deductions that are (i) related to a Tax covered by Section 6(d)(i)(A)(i) shall be calculated on an interim closing of the books method and (ii) related to a Tax covered by Section 6(d)(i)(A)(ii) shall be calculated on a pro rata method.
(B) The Sellers shall be responsible for and paycovenant to pay and, and pursuant to ARTICLE XI shall this Section 6(d)(i)(B), hereby severally and not jointly indemnify the Buyer and hold harmless each Buyer Group Member its Subsidiaries (including the Company and its Subsidiaries) from and against their respective Allocable Portions of all Adverse Consequences arising from (1) any Taxes of or imposed on or with respect to the Company and its Subsidiaries payable in respect of any taxable period ending on or before the Closing Date (a “Pre-Closing Tax Period”); (2) all Taxes of the Company and its Subsidiaries that are attributable to a Pre-Closing Straddle Period pursuant to Section 6(d)(i)(A); (3) any and all Losses and Expenses incurred by such Buyer Group Member in connection with Taxes of the Sellers or arising from (A) Taxes imposed on the Company or any other Persons for which the Company may otherwise be or any of its Subsidiaries is liable as a result of having been a member of a Company Group an affiliated, consolidated, combined or unitary Tax group on or prior to the Closing Date, (including 4) any and all Taxes of any Person for which the Company may be or any of its Subsidiaries is liable pursuant as transferee or successor, by contract or otherwise, which Taxes relate to Treasury Regulation § 1.1502-6 an activity, event or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends transaction occurring on or before the Closing Date Date; (5) any obligation or other liability of the Company to indemnify any other Person (other than its Subsidiaries) in respect of or relating to Taxes to pay an amount pursuant to any Tax sharing, allocation, indemnity or similar agreement or arrangement other than agreements entered into by the Company in the Ordinary Course of Business the primary purpose of which does not relate to Taxes; and (6) any breach of Section 4(k) (Tax Matters); provided, however, that the portion Sellers shall not be liable for or covenant to pay, and shall not indemnify the Buyer or its Subsidiaries (including the Company or its Subsidiaries) from and against (and Buyer shall be responsible for and pay) (A) Taxes that arise as a result of any Straddle Period ending a voluntary transaction or action carried out or effected by the Company or the Buyer on and including the Closing Date after the Closing, provided, however, that the Sellers shall remain liable and shall indemnify Buyer and its Subsidiaries (including the “Pre-Company and its Subsidiaries) for Taxes attributable to transactions and actions that are carried out or effected on the Closing Tax Period”), except, Date either (y) in each casethe Ordinary Course of Business; or (z) pursuant to an obligation of this Agreement; (B) Taxes, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes calculation of the Company for a Straddle Period, the determination of the Final Working Capital or Final Closing Funded Indebtedness; and (C) Taxes of the Company for the portion of Post-Closing Tax Period and the Post-Closing Straddle Period ending on and including (other than Taxes resulting from a breach by the Sellers of Section 4(k)). Notwithstanding the foregoing, the Sellers’ obligations under this Section 6(d)(i)(B) will survive the Closing Date shall only until the first anniversary thereof (as may be determined by assuming that extended pursuant to the Straddle Period consisted last sentence of two taxable years or periodsthis Section 6(d)(i)(B), one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Tax Expiration Date, ”); provided, however, that exemptions, allowances, deductions if a written claim or Taxes that are calculated on an annual basiswritten notice is given in accordance with Section 6(d)(vii) with respect to any claim for indemnification pursuant to this Section 6(d)(i)(B) prior to the Tax Expiration Date, such as property Taxes claim shall continue indefinitely until such claim is finally resolved in accordance with this Agreement. With respect to any amounts which could be claimed under this Section 6(d)(i)(B) and depreciation deductionswhich could also be claimed under any provision of the Representation and Warranty Insurance Policy, claims for such amounts must first be pursued under the Representation and Warranty Insurance Policy and, thereafter, Buyer shall be apportioned between permitted to pursue such two taxable years or periods on a daily basis.
claims pursuant to this Section 6(d)(i)(B) solely to the extent of any part of such claim that the Representation and Warranty Insurance Policy does not cover; provided, that (iiii) Seller notwithstanding the foregoing, Buyer shall be entitled to indemnification under this Section 6(d)(i)(B) in respect of such claim (and Buyer shall not be obligated to first pursue such claim under the Representation and Warranty Insurance Policy) up to the full amount of the retention under the Representation and Warranty Policy and (ii) the Tax Expiration Date shall be extended for so long as any refund such claims are being pursued under the Representation and Warranty Insurance Policy.
(C) Notwithstanding any other provisions to the contrary in this Agreement, Buyer and Sellers agree that to the extent permitted by applicable Laws all Transaction Tax Deductions shall be taken into account as losses or credit of Taxes of the Company (including any interest relating thereto) with respect to deductions in a Pre-Closing Tax Period or Pre-Closing Straddle Period and shall be utilized in the Pre-Closing Tax Period or Pre-Closing Straddle Period to the maximum extent permitted by applicable Law prior to carrying forward the net operating loss attributable to such Taxes were paid Transaction Tax Deductions into a Post-Closing Tax Period or Post-Closing Straddle Period, and the Company and Sellers agree to prepare all Tax Returns in a manner consistent with such intent. If requested by the Sellers’ Representative, Buyer will cause the Company prior to make the Closing or by a Seller after the Closing pursuant to election under Revenue Procedure 2011-29 for any “success-based fee” described in Treasury Regulations Section 8.2(a1.263(a)-5(e)(3) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Pre-Closing Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Period.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Harsco Corp), Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Liability for Taxes. (ia) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller shall be liable for for, shall cause the payment of and pay, and pursuant to ARTICLE XI shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless each Buyer Group Member from, (i) subject to Section 12.2, any Taxes caused by or resulting from and against any and the sale of the Stock (including all Losses and Expenses incurred by such Buyer Group Member in connection with or Taxes arising from the Section 338(h)(10) Elections), (Aii) any Income Taxes imposed on or incurred by the Company or for which Acquired Entities arising out of the Company may otherwise be liable as a result inclusion of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 Acquired Entities in any combined, consolidated, unitary or similar provisions of stategroup (a “Group”) prior to the Closing Date, local or foreign law as a result of having been a member of a Company Group and (iii) any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Income Taxes imposed on or incurred by the Company Acquired Entities (or for which any Group with respect to the Company may otherwise be liable taxable items of the Acquired Entities) for any taxable year or period that ends (the “Pre-Closing Period”) ending on or before the Closing Date (or the portion, determined as described in paragraph (b) of this Section 8.2, of any such Income Taxes for any taxable period beginning on or before and ending after the Closing Date which is allocable to the portion of any Straddle Period ending such period occurring on and including or before the Closing Date (the “Pre-Closing Tax Straddle Period”), except, in each case, ) except to the extent that such Income Taxes were included on (x) arise from or are increased by transactions by the Acquired Entities outside the ordinary course of business after the Closing, or (y) arise from or are increased by a change after Closing Date Balance Sheet of any accounting period or accounting practice of an Acquired Entity, or (z) are attributable to the unreasonable default or delay of a Buying Party or an Acquired Entity after Closing, and taken into account (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in determining the Adjusted Purchase Priceconnection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(iib) For Whenever it is necessary for purposes of paragraph (a)(i), whenever it is necessary a) of this Section 8.2 to determine the liability for portion of any Income Taxes of imposed on or incurred by the Company Acquired Entities (or any Group) for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined made, by assuming that the Straddle Pre-Closing Period consisted of two constitutes a separate taxable years or periods, one which ended at the close period of the Closing Date Acquired Entities and by taking into account the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between actual taxable events occurring during such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, period (except that exemptions, allowances, allowances and deductions or Taxes for a Straddle Period that are calculated on an annual basis, such as property Taxes and depreciation deductions, or periodic basis shall be apportioned between such two taxable years or periods to the Pre-Closing Period ratably on a daily basisper diem basis and that any Income Taxes resulting from making the Section 338(h)(10) Elections shall be apportioned 100% to the Pre-Closing Period).
(iiic) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period and Buyer will, to the extent such Taxes were paid permitted by applicable Law, elect with the Company prior relevant taxing authorities to close all taxable periods of the Acquired Entities as of the close of business on the Closing or by a Date.
(d) Buyer agrees to pay to Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which any refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning received after the Closing Date by Buyer, the Buying Parties or such refund or credit was included on any of the Closing Date Balance Sheet and taken into account Acquired Entities, in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller respect of any amount to Income Taxes for which Seller is entitled pursuant liable under paragraph (a) of this Section 8.2. The Parties shall cooperate in order to take all necessary and reasonable steps to claim any such refund. Any such refund received by a Party for the prior sentence account of the other Party shall be paid to such other Party within fifteen thirty (1530) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining after such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, received.
(e) Seller agrees promptly to repay the amount of such refund or credit to Buyer. and Buyer shall be entitled to agree that any refund or credit payment made with respect to Taxes (including any interest relating thereto) that results from pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable parties on their Tax Returns as an adjustment to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller The indemnification limitations in Section 10.1(b) shall take reasonable steps as may be requested by not apply to the other Party to obtain any refund or credit to which such Party is entitled under provisions of this subparagraph (iii)Section 8.2.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Snap on Inc), Stock and Asset Purchase Agreement (Proquest Co)
Liability for Taxes. (ia) The Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and the Buyer, for (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (Aas defined below) Taxes imposed on the Company Seller, or for which the Company Seller may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date (“Pre-Closing Tax Periods”) and, with respect to any portion of a taxable year or period beginning before and ending after the Closing Date (“Straddle Period”), the portion of any such Straddle Period ending on and including the Closing Date Date, and (ii) all liabilities imposed on the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included Seller on or before the Closing Date Balance Sheet and taken into account in determining under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law) for Taxes of the Adjusted Purchase PriceSeller or any other corporation which is affiliated with the Seller (other than the Seller).
(iib) The Buyer shall be liable for, and shall indemnify the Seller and its Affiliates for, all Taxes imposed on the Seller or any of its Affiliates with respect to the Seller for any taxable year or period that begins after the Closing Date and, with respect to a Straddle Period, the portion of such Straddle Period beginning after the Closing Date.
(c) For purposes of paragraph (a)(i)this Section 7.1, whenever it is necessary to determine the liability for Taxes of the Company Seller for a portion of a Straddle Period:
(i) real, personal and intangible property Taxes (“Property Taxes”) for the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the determination numerator of which is the Taxes number of the Company for the portion of days during the Straddle Period ending on that are in the Pre-Closing Tax Period and including the denominator of which is the number of days in the Straddle Period; and
(ii) all other Taxes for the Pre-Closing Date Tax Period shall be determined by assuming that the Straddle Period consisted of two Seller had a taxable years year or periods, one which period that ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Greenhold Group Inc), Asset Purchase Agreement (Greenhold Group Inc)
Liability for Taxes. (i) Seller shall be liable for and shall pay, and pursuant to ARTICLE Article XI (and subject to the limitations thereof) shall indemnify and hold harmless each Buyer Group Member from and against any and against, all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (A) Taxes imposed on the Company Companies pursuant to Treas. Reg. 1.1502-6 or for which the Company may otherwise be liable similar provision of state or local law solely as a result of the Companies having been a member of a Company Group the Seller Tax Group, or (B) imposed on the Companies for any taxable year or period ending on or prior to the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date (including such Taxes for which imposed on the Company may transactions contemplated by the Assignment and Assumption Agreement); provided, however, that Seller shall not be liable pursuant for or pay and shall not indemnify any Buyer Group Member for, (I) any Taxes up to Treasury Regulation § 1.1502-6 the amount of such Taxes that are accrued on the final Closing Statement (after resolution of all disputes), (II) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of any other relevant Tax law relating to the purchase of the Shares, or that result from Buyer, any Affiliate of Buyer or either Company engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of either Company for federal, state, local or foreign law other Tax purposes, and (III) any Taxes imposed on the Companies as a result of having been a member transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. 1.1502- 76(b)(1)(ii)(B)) to periods after the Closing (Taxes described in this proviso, hereinafter "Excluded Taxes"). Buyer and Seller agree that, with respect to any transaction described in clause (III) of a Company Group the preceding sentence, the Companies and any Taxes resulting from all persons related to the ceasing to be a member Companies under Section 267(b) of any Company Group) the Code immediately after the Closing shall treat the transaction for all federal income tax purposes (in accordance with Treas. Reg. 1.1502-76(b)(1)(ii)(B)), and (Bto the extent permitted) for other income Tax purposes, as occurring at the beginning of the day following the Closing Date. Seller shall be entitled to any refund of (or credit for) Taxes imposed on the Company or for which the Company may otherwise be liable for allocable to any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (Date. Neither Seller, Seller's Parent nor any member of the “PreSeller Tax Group shall elect to retain any net operating loss carryovers of the Companies under Regulations 1.1502-Closing Tax Period”20(g), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and shall pay, and pursuant to ARTICLE Article XI (and subject to the limitations thereof) shall indemnify and hold harmless each Seller from and against any and Group Member against, (A) all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax Taxes imposed on the transactions contemplated by this Agreement.Companies for any taxable years or periods beginning after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B)
Appears in 2 contracts
Samples: Stock Purchase Agreement (Specialty Foods Acquisition Corp), Stock Purchase Agreement (Specialty Foods Corp)
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and Buyer’s Affiliates against, all Losses and Expenses incurred by such which Buyer Group Member or Buyer’s Affiliates suffer or incur as a result of, arising out of or relating to (i) Taxes applicable to the Business, the Purchased Assets or the Assumed Liabilities, in connection with or arising from each case attributable to Pre-Closing Tax Periods, (Aii) Taxes imposed on the Company Seller, or for which the Company Seller may otherwise be liable as a result liable, (iii) Taxes of having been any member of an affiliated, consolidated, combined or unitary group of which Seller (or any predecessor thereof) is or was a member on or prior to the Closing Date, (iv) Taxes of a Company Group any Person imposed on Seller arising under the principles of transferee or successor liability or by Contract, (including v) Taxes for which the Company may be liable Seller is responsible pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company GroupSection 6.12(a)(ii) and (Bvi) claims of creditors of Seller arising out of or connected with its failure to comply with the requirements of any Laws relating to “bulk transfer” or “bulk sales”, or its failure to discharge such claims. For purposes of this Section 6.12, Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of with respect to any Straddle Period ending shall be allocated on and including the Closing Date (the a “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes closing of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the books” basis by treating any Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of as two taxable years or partial periods, one which ended ending at the close of the Closing Date and the other which began at the beginning of on the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of after the Closing Date, provided, however, except that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, (such as real, personal and intangible property Taxes and depreciation deductions, similar ad valorem obligations) imposed on a periodic basis shall be apportioned between allocated proportionately based on the number of days of such two taxable years Straddle Period in a Pre-Closing Tax Period and the number of the remaining days of such Straddle Period.
(ii) Notwithstanding Section 6.12(a)(i), any sales Tax, use Tax, real property transfer or periods on a daily basisgains Tax, asset transfer Tax, documentary stamp Tax or similar Tax attributable to the sale or transfer of the Business, the Purchased Assets or the Assumed Liabilities shall be paid one-half by Seller and one half by Buyer. Each Party agrees to timely sign and deliver such certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise reduce), or file Tax Returns with respect to, such Taxes.
(iii) Seller shall be entitled provide reimbursement for any Tax paid by Buyer all or a portion of which is the responsibility of Seller in accordance with the terms of this Section 6.12 promptly after Xxxxx gives written notice to the amount of any refund or credit of Taxes Seller of the Company (including any interest relating thereto) with respect Tax payable and the portion that is the liability of Seller; provided, however, that failure of Buyer to a Pre-Closing Tax Period give such written notice to Seller shall not preclude Buyer from recovering such amounts pursuant to this Section 6.12(a), unless and to the extent that Seller was actually prejudiced by such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)failure.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Liability for Taxes. (ia) Seller Each Contributor shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member PEGC I Indemnitee (as defined in Section 10.01 below) from and against any and all Losses and Expenses suffered or incurred by such Buyer Group Member PEGC I Indemnitee in connection with or arising from (Ai) Taxes imposed on the any Contributed Company or Subsidiary thereof or for which the such Contributed Company or such Subsidiary may otherwise be liable liable, as a result of having been a member of a Contributed Company Group (including Taxes for which the Contributed Company or any Subsidiary thereof may be liable pursuant to Treasury Regulation § Section 1.1502-6 or similar provisions of state, local or foreign law Law as a result of having been a member of a Contributed Company Group and any Taxes resulting from the Contributed Company or any Subsidiary thereof ceasing to be a member of any Contributed Company Group) and ), (Bii) Taxes imposed on the any Contributed Company or Subsidiary thereof, or for which the any Contributor or Contributed Company or Subsidiary thereof may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date Date, (iii) any breach of any representation or warranty of such Contributor or any Contributed Company or Subsidiary thereof contained herein relating to Taxes, in any Ancillary Agreement or any certificate or supplemental disclosures delivered pursuant hereto or thereto (it being agreed and acknowledged by the “Pre-Closing Tax Period”parties that such representations and warranties shall be deemed not qualified by any references therein to materiality or to whether or not such breach results or may result in a Contributor Material Adverse Effect or a Contributed Company Material Adverse Effect solely for the purpose of calculating the amount of Losses, but not for the purpose of determining whether there has been a breach of such representations and warranties), exceptand (iv) any breach of any covenant of such Contributor or any Contributed Company or Subsidiary thereof contained herein or in any Ancillary Agreement (other than the Tax Protection Agreement) relating to Taxes; provided, in each case, that (1) the Contributors shall have no liability under this Section 8.01(a) for Taxes to the extent such Taxes were included on or reflected in a contra-asset, liability or obligation accrued or reserved for in the Closing Date Audited Balance Sheet or included in the determination of the Actual Adjusted OP Unit Consideration or Contingent Consideration, as finally determined pursuant to Section 1.05(b)(vi) or Section 1.06(c)(v) and taken into account in determining (2) the Adjusted Purchase Pricefirst (but not the sole) source of recovery under this Section 8.01(a) shall be the Escrow Account.
(iib) For purposes of paragraph (a)(iSection 8.01(a), whenever it is necessary to determine the liability for Taxes of the a Contributed Company or any Subsidiary thereof for a Straddle Period, the determination of the Taxes of the such Contributed Company or Subsidiary thereof for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the such Contributed Company or Subsidiary thereof for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the such Contributed Company or Subsidiary thereof were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iiic) Seller shall be entitled to the amount of any refund or credit of Taxes The obligations of the Company Contributors under this Section 8.01(a) shall be: (including any interest relating theretoi) joint and several among the Contributors that are wholly-owned, directly or indirectly, by PELP and (ii) otherwise individual and several with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included those Contributors listed on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iiiSchedule 10.01(d).
(ivd) Buyer PEGC I OP shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller each Contributor Indemnitee from and against any and all Losses suffered or incurred by Seller such Contributor Indemnitee in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreementbreach of any covenant of PEGC I OP relating to Taxes contained herein.
Appears in 2 contracts
Samples: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Liability for Taxes. (ia) Seller SU shall be liable for responsible for, and, from and pay, and pursuant to ARTICLE XI after the Closing shall indemnify and hold the SDTS Indemnitees harmless each Buyer Group Member from and against any and against, all Losses and Expenses suffered or incurred by such Buyer Group Member in connection with any SDTS Indemnitee to the extent arising or arising resulting from any of the following: (Ai) Taxes imposed on of or relating to GS LLC, the Company Subject NTX Operations or for the NTX Assets which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant are attributable to Treasury Regulation § 1.1502any Pre-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date Tax Period and the portion of any Straddle Period ending on and including the Closing Date Date; (ii) Taxes relating to the “Subject STX Operations or the STX Assets which are attributable to any Post-Closing Tax Period and the portion of any Straddle Period beginning on the day immediately after the Closing Date; (iii) those Transfer Taxes borne by SU pursuant to Section 9.03; or (iv) (without duplication) any Taxes attributable to a Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for Period or the portion of the a Straddle Period ending on and including the Closing Date and resulting from a breach by SU of any SU Tax Representation or any of their covenants contained in this Article IX. Notwithstanding anything in this Section 9.01 or otherwise in this Agreement to the contrary, SU shall be have no liability to SDTS for (w) Taxes to the extent such Taxes were included as a liability in calculating the NTX Working Capital Package, as finally determined pursuant to Section 1.09, (x) any Taxes to extent such Taxes were taken into account in determining the payments made from one party to the other in respect of Taxes pursuant to Section 9.01(d), (y) Taxes arising from actions taken by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close direction of SDTS on the Closing Date after the Closing outside the ordinary course of business and (z) Taxes resulting from a breach by SDTS of the covenants in Section 9.02(d).
(b) SDTS shall be responsible for, and, from and after the Closing shall indemnify and hold the SU Indemnitees harmless from and against all Losses suffered or incurred by any SDTS Indemnitee to the extent arising or resulting from any of the following: (i) Taxes relating to the Subject STX Operations or the STX Assets which are attributable to any Pre-Closing Tax Period and the other which began at the beginning portion of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the any Straddle Period shall be allocated between such two taxable years or periods ending on a “closing of the books basis” by assuming that the books of the Company were closed at the close of and including the Closing Date; (ii) Taxes of or relating to GS LLC, provided, however, that exemptions, allowances, deductions or Taxes that the Subject NTX Operations and the NTX Assets which are calculated attributable to any Post-Closing Tax Period and the portion of any Straddle Period beginning on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
the day immediately after the Closing Date; (iii) Seller shall be entitled those Transfer Taxes borne by SDTS pursuant to the amount of Section 9.03; or (iv) (without duplication) any refund or credit of Taxes of the Company (including any interest relating thereto) with respect attributable to a Pre-Closing Tax Period or the portion of a Straddle Period ending on and including the Closing Date and resulting from a breach by SDTS of any SDTS Tax Representation or any of its covenants contained in this Article IX. Notwithstanding anything in this Section 9.01 or otherwise in this Agreement to the contrary, SDTS shall have no liability to SU for (w) Taxes to the extent that such Taxes were included as a liability in calculating the STX Working Capital Package, as finally determined pursuant to Section 1.09, (x) any Taxes to extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause payments made from one party to be paid, to Seller any amount to which Seller is entitled the other in respect of Taxes pursuant to Section 9.01(d), (y) Taxes arising from actions taken by or at the prior sentence within fifteen direction of SU on the Closing Date after the Closing outside the ordinary course of business and (15z) days Taxes resulting from a breach by SU of the receipt covenants in Section 9.02(d).
(c) Taxes attributable to the portion of a Straddle Period ending on or recognition prior to the Closing Date, and to the portion of the applicable refund Straddle Period beginning after the Closing Date shall be determined as follows: (i) in the case of property and other ad valorem Taxes, such Tax shall be prorated based on the number of days in the Straddle Period up to and including the Closing Date, and the number of days in the Straddle Period occurring after the Closing Date, and (ii) to the extent such Tax is measured by income or credit by Buyer receipts or its Subsidiariesotherwise not described in clause (i) above, such Tax shall be allocated based on a closing of the books as of the end of the Closing Date; provided that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on and including the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period.
(d) To the extent the actual amount of a Tax is not known at the time the STX Working Capital Package is finally determined pursuant to Section 1.09 or the NTX Working Capital Package is finally determined pursuant to Section 1.09, SU and SDTS shall utilize the most recent information available in estimating the amount of such Tax for purposes of such determination. To the extent requested by Sellerthe actual amount of a Tax is ultimately determined to be different than the amount (if any) that was taken into account in the STX Working Capital Package or the NTX Working Capital Package, Buyer in each case, as finally determined pursuant to Section 1.09, timely payments will reasonably cooperate with Seller in obtaining such refund or credit, including through be made from one party to the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To other to the extent such refund or credit is subsequently disallowed or required necessary to be returned cause each party to the applicable Governmental Body, Seller agrees promptly to repay bear the amount of such refund or credit Tax that is allocable to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled party under this subparagraph (iii)Section 9.01.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Hunt Consolidated, Inc.), Merger Agreement (InfraREIT, Inc.)
Liability for Taxes. (i) Seller Xxxxxxx shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against pay any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes imposed (A) Taxes imposed on the Company any Xxxxxxx Party for any taxable period or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on with respect to the Company operation of the Business or for which the Company may otherwise ownership or use of the Transferred Assets at or prior to the Closing; provided, however, that Xxxxxxx shall not be liable for or pay (i) Transfer Taxes described in Section 9.2(a)(iv) or (ii) any taxable year Taxes to the extent taken into account in calculating the Final Closing Net Working Capital Amount. Xxxxxxx shall be entitled to any refund of (or period that ends credit in lieu of any such refund) Taxes paid by Xxxxxxx, the JV Entity, Xxxxxx Intermediate or the Company on or before the Closing Date or for which Xxxxxxx is liable and the portion pays under this Agreement, net of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”)Taxes, except, costs or expenses imposed or incurred in each case, to the extent connection with any such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years refund or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, credit; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled if following payment by any JV Entity Group Member to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) Xxxxxxx with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or it is determined that such refund or credit was included on improperly obtained, Xxxxxxx shall make a payment to the Closing Date Balance Sheet JV Entity equal to such refund or credit. The Company shall, and taken into account in determining the Adjusted Purchase Price. Buyer shall paycause its Affiliates, or cause to be paidat Xxxxxxx’ expense, to Seller take such steps as may be reasonably available to secure any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on Returns. The Company shall inform Xxxxxxx shortly after the Closing Date or refund claims. To the extent end of each calendar year as to whether any such refund or credit is subsequently disallowed is, or required to with the taking of action would be, available.
(ii) The Company shall be returned liable for and pay any and all Taxes imposed with respect to the applicable Governmental Bodyoperation of the Business or the ownership or use of the Transferred Assets after the Closing. Except as otherwise provided herein, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer Company shall be entitled to any refund of (or credit for) Taxes for which it is liable under this Agreement. For the avoidance of doubt, this Section 9.2(a)(ii) shall not be interpreted as entitling any Xxxxxxx Group Member to indemnification for Taxes borne by such Xxxxxxx Group Member in its capacity as a holder of Common Units in the JV Entity.
(iii) For purposes of Sections 9.2(a)(i) and (ii), with respect to any Taxes (including any interest relating thereto) that results from imposed in part with respect to the carryback operation of lossesthe Business or the use of the Transferred Assets at or prior to the Closing, credits and in part with respect to the operation of the Business or similar items from a taxable year or period that begins the use of the Transferred Assets after the Closing Date and is attributable to the Company andClosing, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit Taxes shall be paid by Seller to Buyer within fifteen (15) days allocated on a “closing of the receipt books” basis as two partial periods, one ending at the time of the Closing and the other beginning immediately after the Closing; provided, however, that Taxes calculated on an annual basis without reference to income, receipts or payroll, such refund by Seller. Buyer as property Taxes, shall be entitled to any refund or credit included apportioned on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)a daily basis.
(iv) Buyer Notwithstanding anything herein to the contrary, the Company shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against pay any and all Losses incurred by Seller in connection with or arising from any real property transfer Taxor gains Taxes, sales TaxTaxes, use TaxTaxes, stamp TaxTaxes, stock transfer Tax, Taxes or other similar Tax Taxes imposed on the transactions contemplated by the Xxxxxxx Asset Assignment Agreement, the Xxxxxxx Equity Assignment Agreement, this AgreementAgreement (collectively, “Transfer Taxes”). For the avoidance of doubt, Transfer Taxes shall not include any income Taxes.
Appears in 2 contracts
Samples: Contribution and Investment Agreement (Allscripts Healthcare Solutions, Inc.), Contribution and Investment Agreement
Liability for Taxes. (ia) Seller shall Sellers hereby agree, jointly and severally, to be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold the Buyer Indemnitees harmless each Buyer Group Member from and against against, and pay to the Buyer Indemnitees the amount of any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from respect of (Ai) all Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Acquired Company Groupand the Subsidiaries (or any predecessor thereof) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Pre-Effective Date and Tax Period, including the portion of any Straddle Period ending on and including at the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included close of business on the Closing Effective Date Balance Sheet and taken into account in determining the Adjusted Purchase Price(ii) any failure by Sellers to timely pay any and all Taxes required to be borne by Sellers pursuant to Section 11.5.
(iib) For purposes Buyer hereby agrees to be liable for and to indemnify and hold the Seller Indemnitees harmless from and against, and pay to the Seller Indemnitees the amount of paragraph (a)(i), whenever it is necessary to determine the liability for any and all Losses in respect of all Taxes of any Acquired Company and the Subsidiaries for any Post-Effective Date Tax Period, including the portion of any Straddle Period beginning at the close of business on the Effective Date.
(c) The Acquired Companies will, in the discretion of Buyer and where not prohibited by Law, close the taxable periods of some or all the Acquired Companies and the Subsidiaries as of the close of business on the Effective Date. If applicable law does not permit the Acquired Company for or a Subsidiary to close its taxable year on the Effective Date or Buyer does not exercise its discretion to do so, in any case in which a Tax is assessed with respect to or is attributable to a Straddle Period, the determination amount of Taxes attributable to the Taxes of the Company for the portion of the Straddle Pre-Effective Date Tax Period ending on and including the Closing Date shall be determined by assuming that on the Straddle Period consisted basis of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “an interim closing of the books basis” by assuming that the books of the Company were closed at the close Acquired Companies as of the Closing Effective Date, provided, however, and the determination of the hypothetical Tax for such Pre-Effective Date Tax Period shall be determined on the basis of such interim closing of the books; provided that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes basis (including depreciation and depreciation amortization deductions, ) shall be apportioned allocated between the period ending on and including the Effective Date and the period beginning after the Effective Date in proportion to the number of days in each such two period relative to the entire taxable years or periods on a daily basisperiod. Taxes attributable to the Pre-Effective Date Tax Period shall be determined under the same method of accounting used by the applicable Acquired Company during that period.
(iiid) Seller shall be entitled to the amount of any refund Any and all transactions or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid events contemplated by the Company this Agreement that occur on or prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Effective Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled deemed to any refund or credit with respect to Taxes (including any interest relating thereto) that results from have occurred in the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Pre-Effective Tax Period.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Transatlantic Petroleum Ltd.), Stock Purchase Agreement (Transatlantic Petroleum Ltd.)
Liability for Taxes. (ia) Seller The Sellers shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each the Buyer Group Member from and against any and as the case may be, for (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (Aas defined below) Taxes imposed on the Companies or Company Subsidiaries, or for which the Companies or Company Subsidiaries may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date ("Pre-Closing Tax Periods") and, with respect to any portion of a taxable year or period beginning before and ending after the Closing Date ("Straddle Period"), the portion of any such Straddle Period ending on and including the Closing Date Date, and (ii) all liabilities imposed on the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included Companies or Company Subsidiaries on or before the Closing Date Balance Sheet under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law) for Taxes of the Sellers or any other corporation which is affiliated with Sellers (other than the Companies and taken into account in determining the Adjusted Purchase PriceCompany Subsidiaries).
(iib) The Buyer shall be liable for, and shall indemnify the Sellers and their Affiliates for, all Taxes imposed on the Sellers or any of their Affiliates with respect to the Companies and Company Subsidiaries for any taxable year or period that begins after the Closing Date and, with respect to a Straddle Period, the portion of such Straddle Period beginning after the Closing Date.
(c) For purposes of paragraph (a)(i)this Section 7.1, whenever it is necessary to determine the liability for Taxes of the Companies and Company Subsidiaries for a portion of a Straddle Period:
(i) real, personal and intangible property Taxes ("property Taxes") for the Pre-Closing Tax Period shall equal to the amount of such property Taxes for the entire Straddle Period multiplied by a fraction, the determination numerator of which is the Taxes number of the Company for the portion of days during the Straddle Period ending on that are in the Pre-Closing Tax Period and including the denominator of which is the number of days in the Straddle Period; and
(ii) all other Taxes for the Pre-Closing Date Tax Period shall be determined by assuming that the Straddle Period consisted of two Companies and Company Subsidiaries had a taxable years year or periods, one which period that ended at the close of the Closing Date and the other which began at the beginning Date.
(d) The Buyer covenants that it will not cause or permit any Company or Company Subsidiary or any Affiliate of the day following Buyer (i) to take any action on the Closing Date and items other than in the ordinary course of incomebusiness, gainincluding but not limited to the distribution of any dividend or the effectuation of any redemption, deduction, loss that could give rise to any Tax liability or credit reduce any Tax attribute of the Company for Sellers or any affiliated group of which the Straddle Period shall be allocated between such two taxable years Sellers are members or periods (ii) to make or change any Tax election, amend any Tax Return or take any Tax position on a “closing any Tax Return, take any action, omit to take any action or enter into any transaction that results in any increased Tax liability or reduction or any Tax attribute of the books basis” by assuming that Sellers or any affiliated group of which the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that Sellers are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount members in respect of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to Period. The Buyer agrees that the extent such Taxes were paid by Sellers or any affiliated group of which the Company prior to the Closing Sellers are members shall have no Tax liability or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net reduction of any cost Tax attribute resulting from any action referred to Buyer in the preceding sentence and its Affiliates attributable agrees to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and the Sellers or any affiliated group of which the Sellers are members against any such Tax and all Losses incurred by Seller any loss, liability, claim, damage, expense or Tax in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreementtherewith.
Appears in 1 contract
Samples: Stock Purchase Agreement (Citizens Communications Co)
Liability for Taxes. (ia) From and after Closing, the Seller shall be liable for and payfor, and pursuant shall indemnify, and hold harmless the Purchaser, the Company, and their respective Affiliates from and against all Taxes of the Company or the Subsidiary for any Pre-Closing Period; provided, however, that the Seller shall be liable only to ARTICLE XI the extent that such Taxes exceed the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) and taken into account in determining the Final Purchase Price after giving effect to all the adjustments set forth in Section 2.4.
(b) From and after Closing, the Purchaser shall be liable for, and shall indemnify and hold harmless each Buyer Group Member the Seller and their respective Affiliates from and against any and (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on of the Company or and the Subsidiary for which any Post-Closing Period and (ii) any Transfer Taxes required to be borne by the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable Purchaser pursuant to Treasury Regulation § 1.1502-6 or similar provisions Section 11.3.
(c) Whenever it is necessary for purposes of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing this Agreement to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and determine the portion of any Taxes for a Straddle Period which is allocable to the Pre-Closing Period or the Post-Closing Period, any Taxes attributable to the Straddle Period that are based on or related to income, gains, or receipts will be allocated between the Pre-Closing Period and the Post-Closing Period based on an interim closing of the books (such Taxes allocable to the Pre-Closing Period being determined as if such taxable period ended as of the end of the Closing Date) and any other Taxes will be prorated between the Pre-Closing Period and the Post-Closing Period based upon the number of days in the applicable period ending on and including the Closing Date (and the “Pre-Closing Tax Period”), except, number of days in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending beginning on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of after the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Water Works Company, Inc.)
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from pay (A) all Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable Subsidiary pursuant to Treasury Regulation Treas. Reg. § 1.1502-6 or similar provisions provision of state, local or foreign law solely as a result of the Company or the Company Subsidiary having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Consolidated Tax Group) and , (B) Taxes imposed on the Company or for which the Company may otherwise be liable Subsidiary for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date Date, (C) any payments owed by the “Pre-Closing Company or the Company Subsidiary under any Tax Period”allocation, sharing or indemnity agreements (other than any such agreements solely between the Company and the Company Subsidiary or any such agreements entered into by the Company or the Company Subsidiary after the Closing), except(D) any Taxes imposed on the Company or the Company Subsidiary in connection with the Reorganization Transactions, and (E) any liability of the Company or the Company Subsidiary for the payment of Taxes of a predecessor or any transferor or otherwise by operation of a similar principle of Law in each casecase which relate to an event or transaction occurring on or before the Closing Date; provided, however, that Seller shall not be liable for or pay, and shall not indemnify Purchaser from and against, (I) any Taxes to the extent such Taxes were included taken into account as a liability or reserve in calculating Final Working Capital, (II) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of the purchase of the Shares or that result from Purchaser, any Affiliate of Purchaser, the Company or the Company Subsidiary engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of the Company or the Company Subsidiary for Tax purposes and (III) any Taxes imposed on the Company or the Company Subsidiary as a result of transactions occurring on the Closing Date Balance Sheet and taken into account that are properly allocable (based on, among other relevant factors, factors set forth in determining Treas. Reg. § 1.1502-76(b)(1)(ii)(B)) to the Adjusted Purchase Priceportion of the Closing Date after the Closing (Taxes described in this proviso, hereinafter “Excluded Taxes”).
(ii) Purchaser and Seller agree that, with respect to any transaction described in clause (III) of Section 5.8(a)(i), the Company and all persons related to the Company under Section 267(b) of the Code immediately after the Closing shall treat the transaction for all federal income Tax purposes (in accordance with Treas. Reg. §1.1502-76(b)(1)(ii)(B)) and (to the extent permitted) for other income Tax purposes, as occurring at the beginning of the day following the Closing Date.
(iii) Seller shall be entitled to any refund of (or credit against) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date. Purchaser shall, and shall cause its controlled Affiliates to take such steps as may be reasonably available to secure any such refund or credit, including through the filing of amended Tax Returns for any period that ends on or before Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date. Purchaser shall inform Seller shortly after the end of each calendar year as to whether any such refund or credit is, or with the taking of action would be, available. Notwithstanding the foregoing, Seller shall not be entitled to any such refund of (or credit against) Taxes to the extent that such refund or credit (a) was taken into account as an asset in calculating Final Working Capital, (b) is used by Purchaser to offset any Taxes paid by Purchaser for which Seller is responsible pursuant to Section 8.2 or (c) arose from the carryback of losses, credits or other Tax attributes from a taxable period (or portion thereof) beginning after the Closing Date.
(iv) Purchaser shall be liable for and pay (A) all Taxes imposed on the Company or the Company Subsidiary for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date unless such Taxes are described in clause (A), (C) or (D) of Section 5.8(a)(i) and (B) all Excluded Taxes.
(v) For purposes of paragraph (a)(iSection 5.8(a)(i)-(iv), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of or the Company Subsidiary for the portion of the a Straddle Period ending that ends on and including or before the Closing Date Date, and the portion of a Straddle Period that begins after the Closing Date, the determination shall be determined made by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company or such Company Subsidiary for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company or such Company Subsidiary were closed at the close of the Closing Date, provided, however, that (I) transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. § 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date (it being understood that the Reorganization Transactions shall be allocated to a taxable period ending on or before the Closing Date irrespective of when those transactions occur), and (II) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iiivi) Notwithstanding anything to the contrary herein, Seller shall be entitled and Purchaser agree that Seller makes no representation, warranty, and provides no other assurance, with respect to the amount of any refund or credit of Taxes Tax Attributes of the Company (including any interest relating thereto) or the Company Subsidiary, or with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer availability on and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller of any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days Tax Attributes of the receipt Company or recognition of the applicable refund Company Subsidiary. Seller shall have no liability for any Taxes resulting from or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit arising with respect to Taxes any sale of the Company or the Company Subsidiary (including or any interest relating theretoassets thereof) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after following the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Date.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Albany International Corp /De/)
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(iSections 6.5(a) and 7.1(c), whenever it is necessary to determine the liability for Taxes of the any Acquired Company for a Straddle Period, the determination of the Taxes of the any Acquired Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one of which ended at the close of the Closing Date and the other of which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the such Acquired Company for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the such Acquired Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two (2) taxable years or periods on a daily basis; provided, further, that for purposes of such allocation, transactions occurring or actions taken on the Closing Date but after the Closing by Parent or by, or with respect to, the Acquired Companies that are outside the ordinary course of business and not expressly contemplated by this Agreement shall be treated as occurring after the Closing Date.
(ii) To the extent permitted or required under applicable Tax Law, the taxable year of the Acquired Companies shall close as of the end of the Closing Date. To the maximum extent permitted by applicable Law, all Transaction Tax Deductions shall be allocated to the taxable period ending on the Closing Date or the preClosing portion of the Straddle Period, as applicable and, as and to the extent applicable, an election shall be made to deduct seventy percent (70%) of all “success based” fees under Revenue Procedure 2011-29, 2011 IRB 18.
(iii) Seller and Parent shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall each be liable for one-half (1/2) and paypay one-half (1/2), and pursuant to ARTICLE XI VII, shall indemnify defend, indemnify, save and hold keep harmless each Parent Indemnitee and Seller Indemnitee against and from and against any and all Losses Damages sustained or incurred by such Parent Indemnitee or Seller in connection with Indemnitee resulting from or arising from out of, any real property transfer Taxtransfer, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement. The party required by applicable Law to file any related Tax Return with respect to such Taxes shall prepare such Tax Return, and the other party shall cooperate in the preparation and filing of such Tax Return.
Appears in 1 contract
Samples: Merger Agreement (Maravai Lifesciences Holdings, Inc.)
Liability for Taxes. (ia) Seller Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Parent shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold the Buying Parties (subject to Section 8.1(g)) and the Acquired Entities harmless each Buyer Group Member from and against from, (i) subject to Section 13.2, any and all Losses and Expenses Taxes incurred by such Buyer Parent or a member of the Parent Affiliated Group Member in connection with caused by or arising resulting from the Transactions and the Second Merger, (Aii) subject to Section 13.2, any Income Taxes imposed on or incurred by the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 Acquired Entities in any combined, consolidated, unitary or similar provisions of stategroup (a “Group”) prior to the Closing Date, local or foreign law as a result of having been a member of a Company Group and (iii) any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Income Taxes imposed on or incurred by the Company Acquired Entities (or for which any Group with respect to the Company may otherwise be liable taxable items of the Acquired Entities) for any taxable year or period that ends (the “Pre-Closing Period”) ending on or before the Closing Date (or the portion, determined as described in paragraph (c) of this Section 8.1, of any such Income Taxes for any taxable period beginning on or before and ending after the Closing Date which is allocable to the portion of any Straddle Period ending such period occurring on and including or before the Closing Date (the “Pre-Closing Tax Straddle Period”), except, in each case, ) except to the extent that such Taxes were included on (x) arise from or are increased by transactions by the Acquired Entities outside the ordinary course of business after the Closing Date Balance Sheet or (y) arise from or are increased by a change after Closing of any accounting period or accounting practice of an Acquired Entity and taken into account (iv) any attorneys’ fees or other costs incurred by the Buying Parties or the Acquired Entities in determining the Adjusted Purchase Priceconnection with obtaining any payment from Parent due under this paragraph (a) of Section 8.1.
(b) The Buying Parties shall be liable for, and shall indemnify and hold Parent harmless from, (i) any Taxes imposed on or incurred by or with respect to the Acquired Entities to the extent paid by Parent, but for which Parent is not liable under paragraph (a) of this Section 8.1 and (ii) any attorneys’ fees or other costs incurred by Parent in connection with any payment from the Buying Parties under this paragraph (b) of Section 8.1.
(c) For purposes of paragraph (a)(i)this Agreement, whenever it is necessary in determining the Straddle Period allocation of Taxes not based on or measured by income or receipts, the amount of Taxes attributable to determine the liability for Taxes a portion of the Company Straddle Period shall be deemed to be the amount of such Taxes for the entire taxable period multiplied by a Straddle Period, fraction the determination numerator of which is the Taxes number of the Company for days in the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that denominator of which is the total number of days in such Straddle Period, and in determining the Straddle Period consisted allocation of two taxable years Taxes based on or periodsmeasured by income or receipts, one which ended at the close amount of the Closing Date and the other which began at the beginning Taxes attributable to a portion of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two determined as though the taxable years or periods on a “closing period ended as of the books basis” by assuming that the books of the Company were closed at the close of business on the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iiid) Seller shall be entitled Parent and the Buying Parties will, to the amount extent permitted by applicable Law, elect with the relevant taxing authorities to close all taxable periods of the Acquired Entities as of the close of business on the Closing Date.
(e) The Buying Parties agree to pay to Parent any refund received after the Closing Date by the Buying Parties or any of the Acquired Entities, in respect of any refund or credit Taxes for which Parent is liable under paragraph (a) of Taxes of the Company this Section 8.1 (including any interest relating thereto) refunds of Income Taxes received on account of a carryforward or carryback of a net operating loss realized with respect to a Pre-Closing Period and refunds of Income Taxes received with respect to amended Tax Period Returns filed for Pre-Closing Tax Periods to the extent such Taxes were paid amended Tax Returns conform the Income Tax treatment to the treatment of items changed by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or creditParent’s contemplated earnings restatement), except to the extent such refund or credit arises is shown as an asset for purposes of calculating Closing Working Capital Value. Parent agrees to pay to the result Buying Parties any refund received by Parent in respect of a carryback any Taxes for which the Buying Parties are liable under paragraph (b) of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the this Section 8.1. The parties shall cooperate in order to take all necessary steps to claim any such refund, including electing to carry back net operating losses realized with respect to Pre-Closing Date or Periods where permitted under applicable Law. Any such refund or credit was included on received by a party for the Closing Date Balance Sheet and taken into account in determining of the Adjusted Purchase Price. Buyer other party shall pay, or cause be paid to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence such other party within fifteen thirty (1530) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining after such refund or credit, including through is received.
(f) Parent and the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to Buying Parties agree that any refund or credit payment made with respect to Taxes (including any interest relating thereto) that results from pursuant to this Section 8.1 or as an indemnity under Article X shall be treated by the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable parties on their Tax Returns as an adjustment to the Company and, Purchase Price.
(g) Any indemnity with respect to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit U.K. Companies shall be paid by Seller to Buyer within fifteen (15) days of Sub rather than to the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)U.K. Companies directly.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Subscription Agreement and Plan of Merger (Proquest Co)
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant agrees to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against against, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on with respect to the Company or for which Stores, the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which Assets, the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group Business and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable Assumed Liabilities for any taxable year or period that ends on or before the Closing Cut-Off Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “PreCut-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Off Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) . Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund of (or credit with respect to for) Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and for which it is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled liable under this subparagraph (iii)Agreement.
(ivii) Buyer shall be liable for and pay, and pursuant agrees to ARTICLE XI shall indemnify and hold harmless each Seller Group Member from and against against, any and all Losses incurred Taxes imposed with respect to the Stores, the Assets, the Business and the Assumed Liabilities for any taxable year or period that begins after the Cut-Off Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning immediately after the Cut-Off Date. Buyer shall be entitled to any refund of (or credit for) Taxes for which it is liable under this Agreement.
(iii) For purposes of Sections 8.2(a)(i) and (ii), any Straddle Period shall be treated on a "closing of the books" basis as two partial periods, one ending on the Cut-Off Date and the other beginning immediately after the Cut-Off Date; provided, however, that Taxes imposed on a periodic basis shall be allocated pro rata on a daily basis. Notwithstanding the preceding sentence, if the transactions contemplated by Seller this Agreement result in connection with the reassessment of the value of any of the Assets for property Tax purposes, or the imposition of any property Taxes on such Assets at a rate that is different than the rate that would have been imposed if such transactions had not occurred taking account of any changes in rate arising from consummation of the Saks Transaction, then (y) the portion of such property Taxes for the portion of such Straddle Period ending on the Cut-Off Date shall be allocated pro rata on a daily basis, using the assessed value and Tax rate that would have applied had such transactions not occurred, and (z) the portion of such property Taxes for the portion of such Straddle Period beginning immediately after the Cut-Off Date shall be the total property Taxes for such Straddle Period minus the amount described in clause (y).
(iv) Notwithstanding anything herein to the contrary, Buyer agrees to pay, and agrees to indemnify and hold harmless each Seller Group Member from and against, 50% of any and all real property transfer Taxor gains Taxes, sales TaxTaxes, use TaxTaxes, stamp TaxTaxes, stock transfer Tax, Taxes or other similar Tax Taxes imposed on the transactions contemplated by this AgreementAgreement (collectively, "Transfer Taxes") and Seller agrees to pay, and agrees to indemnify and hold harmless each Buyer Group Member from and against 50% of any and all Transfer Taxes.
Appears in 1 contract
Liability for Taxes. (i) Parent and Seller shall be liable for and pay, and pursuant to ARTICLE XI shall Article X (and subject to the limitations thereof) agree to indemnify and hold harmless each Buyer Group Member from and against against, any Taxes imposed in respect of the Company for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and all Losses including the Closing Date; provided, however, that Parent and Expenses incurred by such Seller shall not be liable for or pay, and shall not indemnify or hold harmless Buyer Group Member in connection with or arising from and against, (A) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet, to the extent that any such liability or reserve reduces Working Capital and (B) any Taxes imposed on in respect of the Company or for which the Company may otherwise be liable as a result of having been a member transactions occurring on the Closing Date that are properly allocable to the portion of a Company Group the Closing Date after the Closing (including Taxes for which the Company may be liable pursuant described in this proviso, hereinafter “Excluded Taxes”). Buyer and Seller agree that, with respect to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and transaction described in clause (B) Taxes imposed on of the preceding sentence, the Company or for which and all persons related to the Company may otherwise under Section 267(b) of the Code immediately after the Closing shall treat the transaction for all federal income Tax purposes, and (to the extent permitted) for other income Tax purposes, as occurring at the beginning of the day following the Closing Date. Seller shall be liable for entitled to any refund of (or credit for) Taxes allocable to any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(ii) For purposes of paragraph (a)(iSections 7.1(a)(i), whenever it is necessary to determine the liability Liability for Taxes in respect of the Company for a Straddle Period, the determination of the such Taxes of the Company for the portion of the Straddle Period (A) ending on and including (the “Pre-Closing Period”), and (B) the portion of the Straddle Period beginning after (the “Post-Closing Period”), in each case, the Closing Date Date, shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company or with respect to the Unit for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that (i) Liability for Taxes in respect of real and personal property shall be apportioned to the Pre-Closing Period based on the number of days in such Pre-Closing Period divided by the number of days in the entire Straddle Period; and (ii) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to If, as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction, credit or amount of any refund or credit of Taxes Tax that results in an increase in a Tax Liability for which Parent and Seller would otherwise be liable pursuant to Section 7.1(a)(i), and such change results in a decrease in the Tax Liability of the Company Company, Buyer or any Affiliate or successor thereof (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by Affiliate or successor thereof that holds any interests in the Company prior to the Closing that is a limited liability company or by a Seller after the Closing pursuant to Section 8.2(apartnership for tax purposes) for any taxable year or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on for the portion of any Straddle Period beginning after the Closing Date Balance Sheet Date, Parent and taken into account in determining the Adjusted Purchase Price. Buyer Seller shall pay, or cause to not be paid, to Seller any amount to which Seller is entitled liable pursuant to the prior sentence within fifteen (15such Section 7.1(a)(i) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, such increase to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)decrease.
(iv) Notwithstanding anything herein to the contrary, each of Buyer and Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from the other party against, fifty percent (50%) of any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock stock, unit or asset transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
(v) Seller shall pay Buyer for the Taxes that Seller is liable pursuant to this Section 7.1(a) but which are payable with any Tax Return to be filed by Buyer or its Affiliates upon the written request of Buyer, setting forth in detail the computation of the amount owed by Seller or Buyer, but in no event earlier than 10 Business Days prior to the due date for paying such Taxes.
Appears in 1 contract
Liability for Taxes. (ia) Seller SPLC and SOPUS shall be jointly and severally liable for, and shall each indemnify, defend and hold harmless SHLX and Operating from any unpaid Taxes (including related penalties and interest) imposed on or incurred by or with respect to their respective interests in the Subject Interests or the assets related to the Subject Interests, attributable to any taxable period ending on or prior to the Closing Date or portion thereof to the extent occurring on or prior to the Closing Date.
(b) SHLX and Operating shall be liable for any Taxes (including related penalties and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses interest) imposed on or incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period their interests in the Subject Interests or the assets related to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates Subject Interests attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax any taxable period (or portion thereof) beginning after the Closing Date or such refund portion thereof to the extent occurring after the Closing Date.
(c) Whenever it is necessary for purposes of this Article VI to determine the amount of any Taxes imposed on or credit was included on incurred by or with respect to the Subject Interests or the assets related to the Subject Interests for a taxable period beginning before and ending after the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant allocable to the period ending on or prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on to the Closing Date and the allocation is not otherwise prescribed by Applicable Law or refund claims. To agreement in effect as of the extent date hereof, such refund or credit is subsequently disallowed or required amount shall be deemed to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes Tax for the entire Tax period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on (including any interest relating theretoand including) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and the denominator of which is attributable to the Company andnumber of days in the entire Tax period.
(d) If SHLX receives a refund of any Taxes (including related penalties and interest) that SPLC or SOPUS is responsible for hereunder, to or if SPLC or SOPUS receives a refund of any Taxes (including related penalties and interest) that SHLX is responsible for hereunder, the extent party receiving such refund is actually received by Seller or its Affiliatesshall, any such refund or credit shall be paid by Seller to Buyer within fifteen ninety (1590) days of the after receipt of such refund by Sellerrefund, remit it to the party which has responsibility for such Taxes hereunder. Buyer The parties shall be entitled cooperate in order to any refund or credit included on the Closing Date Balance Sheet take all necessary and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain claim any refund or credit to which such Party is entitled under this subparagraph (iii)refund.
(ive) Buyer shall be liable for For federal income tax purposes, the parties agree to report any payments with respect to Section 2.4, Section 2.5, Section 6.1, Section 8.1 and pay, and pursuant Section 8.2 as an adjustment to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementConsideration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Shell Midstream Partners, L.P.)
Liability for Taxes. (i) Seller Notwithstanding any other provision of this Agreement, Bank of America shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) all Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable EVRI for any taxable year or period that ends on or before the Closing Date, (B) all taxes for which EVRI may otherwise be liable under Treasury Regulation Section 1.1502-6 (or any similar provision of state or foreign law) for any taxable period that ends on or before the Closing Date and (C) with respect to any period beginning before and ending after the Closing Date (a "Straddle Period"), the Taxes attributable to that portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.Date;
(ii) Notwithstanding any other provision of this Agreement, Purchaser shall be liable for all Taxes imposed on EVRI or for which EVRI may otherwise be liable, for any taxable year or period that begins after the Closing Date and (B) with respect to any Straddle Period, the Taxes attributable to that portion of such Straddle Period beginning after the Closing Date.
(iii) For purposes of paragraph paragraphs (a)(i)) and (a)(ii) of this Section 5.4, whenever it is necessary to determine the liability for Taxes of the Company EVRI for a portion of any Straddle Period, the determination of the Taxes of the Company EVRI for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company EVRI for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company EVRI were closed at the close of the Closing Date, ; provided, however, that (I) Taxes imposed on EVRI as a result of transactions (other than transactions in the ordinary course of business) occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date and (II) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiiiv) Seller shall be entitled On or prior to the amount Closing Date, all Tax Sharing Arrangements (other than this Agreement between EVRI, on one hand, and Bank of America or any refund member of Bank of America's Tax Group, on the other hand, shall terminate and EVRI shall not have any further rights or credit obligations thereunder. For purposes of Taxes this paragraph, (A) a "Tax Sharing Arrangement" shall mean any agreement or arrangement for the allocation or payment of the Company (including any interest relating thereto) Tax liabilities or payment for Tax benefits with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing group of corporations which constitutes a fiscal unity or by which files a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closingconsolidated, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.combined or
Appears in 1 contract
Liability for Taxes. (i) Seller Except as shown as a liability or reserve on the Unaudited Balance Sheet, the Stockholders shall be liable for and payindemnify CMS Energy, the Surviving Corporation and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and their subsidiaries (collectively, the "Tax Indemnitees") for all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company any Tax Indemnitee (or for which the Company a Tax Indemnitee may otherwise be liable liable) arising from the assets or activities of Waltxx xxx its Subsidiaries for any taxable year or period of Waltxx xx its Subsidiaries that ends on or before the Unaudited Balance Sheet Date and, with respect to any taxable year or period beginning before and ending after the Unaudited Balance Sheet Date, the portion of such taxable year ending on and including the Unaudited Balance Sheet Date (each such taxable year, period or portion thereof referred to herein as "Pre-June 30, 1994 Taxable Period"). Notwithstanding the preceding sentence, in the case of an adjustment which increases an item of income or gain, or decreases an item of loss, deduction or credit, of Waltxx xx any of its Subsidiaries for any Pre-June 30, 1994 Taxable Period and which will (under the law in effect at the time of such adjustment) result in a corresponding decrease in an item of income or gain, or an increase in an item of loss, deduction or credit, of Waltxx, xxy of its Subsidiaries, or the Surviving Corporation for one or more taxable years or periods following the year or period to which the adjustment relates (a "Timing Adjustment"), the Shareholders shall not be required to pay to the Tax Indemnitees any increase in the tax liability of Waltxx xxx its Subsidiaries attributable to such Timing Adjustment, but shall be required to pay to the Tax Indemnitees the amount of any interest and penalties payable as a result of having been a member of a Company Group (including Taxes for which such Timing Adjustment, provided that if the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law representations set forth in Sections 3.8(a)(xx) through 3.8(a)(xxiii) are breached other than as a result of having been Timing Adjustments (including as a member result of an adjustment (other than a Company Group and any Taxes resulting from Timing Adjustment) to the ceasing to be taxable income of Waltxx xx its Subsidiaries for a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Unaudited Balance Sheet Date and which is used to reduce the portion net operating loss carryforwards of Waltxx xxx its Subsidiaries described in such Sections), the Stockholders shall pay to the Tax Indemnitees an amount equal to the sum of (y) 20% of the amount by which the net operating loss carryovers set forth in Schedule 3.8(b) or Schedule 3.8(c) from any taxable period exceed the amount of net operating loss carryovers as finally determined from such taxable period; provided, that the aggregate amount payable by the Stockholders pursuant to this clause (y) by reason of all such breaches shall not exceed $1,000,000, plus (z) the amount of any Straddle Period interest and penalties payable as a result of the reduction in such net operating loss carryover. Notwithstanding the preceding sentence, the Stockholders shall not be required to indemnify the Tax Indemnitees as a result of the breach of the representations described in Sections 3.8(a)(xx) through 3.8(a)(xxiii) unless the unavailability of any of the carryovers described therein are challenged in the audit of the Tax Returns filed by CMS Energy and its Affiliates for their taxable years ending on and including the Closing Date (the “Pre-Closing Tax Period”)or before December 31, except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price1999.
(ii) The Tax Indemnitees shall be liable for and indemnify the Stockholders for the Taxes of Waltxx xxx its Subsidiaries for any taxable year or period that begins after the Unaudited Balance Sheet Date and, with respect to any taxable year or period beginning before and ending after the Unaudited Balance Sheet Date, the portion of such taxable year or period beginning after the Unaudited Balance Sheet Date.
(iii) For purposes of paragraph paragraphs (a)(i) and (a)(ii), whenever it is necessary to determine the liability for Taxes of the Company Waltxx xxx its Subsidiaries for a Straddle Periodportion of a taxable year or period that begins before and ends after the Unaudited Balance Sheet Date, the determination of the Taxes of the Company Waltxx xxx its Subsidiaries for the portion of the Straddle Period year or period ending on on, and including the Closing portion of the year or period beginning after, the Unaudited Balance Sheet Date shall be determined by assuming that the Straddle Period consisted of two Waltxx xxx its Subsidiaries had a taxable years year or periods, one period which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Unaudited Balance Sheet Date, provided, however, except that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer The Stockholders shall be liable for and payall transfer, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with sales or similar Taxes arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or the Merger and the other similar Tax imposed on the transactions contemplated by this Agreement.
(v) Within twenty (20) days after the execution of this Agreement, the Stockholders shall deliver or cause to be delivered to CMS Energy or its designee true and complete copies of: (A) all income Tax Returns of Waltxx xxx its Subsidiaries requested by CMS Energy or its Subsidiaries; (B) any other Tax Returns requested by CMS Energy or its Subsidiaries, as may be relevant to Waltxx xxx its Subsidiaries and their assets and operations; and (C) any workpapers or other supporting data requested by CMS Energy or its subsidiaries relating to "income taxes payable" or similar line item reflected in the Unaudited Statement of Income and Unaudited Balance Sheet relating to Tax Returns made available pursuant to (A) or (B), or relating to Tax Returns referred to in (A) or (B) not yet filed, to the extent copies of such Tax Returns, work papers or other data are in existence and in the possession of Waltxx xx the time of such request.
Appears in 1 contract
Liability for Taxes. (ia) Seller Except as provided in the LLC Technology Agreement, Holdco and CVX LLC each shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify each of Ford and hold harmless each Buyer Group Member from and GM against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group Holdco (but not including Taxes for which the Company may be liable pursuant attributable to Treasury Regulation § 1.1502-6 or similar provisions of stateCommerce One Holding, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company GroupInc. ("COMMERCE ONE HOLDING") and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and Date. In the portion case of any Straddle Period ending Taxes determined on a combined basis with Ford and including GM, the amount of Taxes imposed on Holdco and CVX LLC or any subsidiary of Holdco shall be determined as if Holdco or any subsidiary of Holdco were filing tax returns on a standalone basis (e.g. not as part of the Ford and/or GM combined groups) except that (1) for income tax purposes the maximum marginal rate of tax on taxable income shall be used and (2) no alternative minimum tax shall be taken into account.
(b) Ford and GM shall be liable for their respective share of, and shall indemnify Holdco and Commerce One against, all Taxes for any taxable year that ends on or before the Closing Date (imposed on Holdco or any subsidiary of Holdco arising under any provision of state or foreign law similar to Treasury Regulation Section 1.1502-6 other than Taxes imposed by reason of being a member of a consolidated group of which Holdco is the “Pre-Closing Tax Period”)common parent and GM shall be liable for, exceptand indemnify Holdco and Commerce One against, in each case, any Taxes attributable to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Priceactivities or operations of Commerce One Holding.
(iic) For purposes of paragraph paragraphs (a)(ii)(A) and (i)(B) of this Section 11.13(b), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Periodportion of any period beginning before and ending after the Closing Date (a "STRADDLE PERIOD"), the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company CVX LLC, Holdco or any subsidiary of Holdco were closed at the close of the Closing Date; PROVIDED, provided, howeverHOWEVER, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (ia) Seller shall be liable for responsible for, pay and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each the Buyer Group Member from and against any Indemnified Parties against, all Pre-Closing Tax Liabilities and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable payable as a result of having been a breach of any representation or warranty contained in Section 3.22 of the Agreement.
(b) Buyer shall be responsible for, pay and indemnify and hold harmless, the Seller Indemnified Parties against, all Taxes of the Company with respect to all periods (or portions thereof) beginning after the Closing Date.
(c) Buyer shall pay to Seller the amounts of any refund, abatement or credit of Taxes (net of any costs associated therewith) received (i) for which Seller has previously indemnified Buyer and (ii) for Taxes that are attributable to the ownership of the Company for any period or portion thereof ending on or prior to the Closing Date.
(d) Seller shall pay to Buyer the amounts of any refund, abatement or credit of Taxes received (i) for which Buyer has previously indemnified Seller and (ii) for Taxes that are attributable to the ownership of the Company for periods (or portions thereof) beginning after the Closing Date.
(e) Seller shall prepare and timely file or shall cause to be prepared and timely filed and shall remit or cause to be remitted any Taxes due in respect of the following Tax Returns with respect to the Company or in respect of their businesses, assets or operations; (i) all Tax Returns for any taxable period ending on or before the Closing Date; and (ii) all other Tax Returns required to be filed (taking into account extensions) prior to the Closing Date. Buyer shall prepare and timely file or shall cause to be prepared and timely filed all Tax Returns that are required to be filed by or with respect to the Company or in respect of their businesses, assets or operations for taxable years or periods beginning and ending after the Closing Date. Buyer shall remit or cause to be remitted any Taxes due in respect of such Tax Returns. If Buyer is required to file any Tax Return for a taxable period beginning before and ending after the Closing Date, Buyer shall cause such Tax Return to be filed and shall be responsible for the payment of any Tax for such period. However, Seller shall pay to Buyer, as an adjustment to the Purchase Price, the amount by which the Tax attributable to the period through the Closing Date exceeds the amount of such Tax paid (including payments of estimated Tax) on or before the Closing Date. For purposes of this Section 8, the Tax attributable to the period through the Closing Date shall be determined using the Tax accounting methods and Tax elections used by the Company before the Closing Date. Buyer shall compute the amount of the Tax attributable to the period through the Closing Date and shall notify Seller of such amount in writing no later than fifteen (15) days prior to filing the Tax Return. Within ten (10) days after the date of such notification, Seller shall pay to Buyer or Buyer shall pay to Seller, as appropriate, the difference between (i) the amount of Tax determined by Buyer as attributable to the portion of the period through the Closing Date, and (ii) the amount of the Tax for the taxable period paid (including payments of estimated Tax) on or before the Closing Date by Seller, unless within five (5) days after such date, Seller notifies Buyer in writing that Seller disagrees with the computation of any such amount. In that case, Seller and Buyer shall proceed in good faith to determine the correct amount, and Seller’s payment to Buyer, or Buyer’s payment to Seller, shall be due the later of (i) the time specified in the immediately preceding sentence and (ii) ten (10) days after Seller and Buyer agree to the amount payable. The parties agree that if the Company is permitted but not required under applicable state or local Tax laws to treat the Closing Date as the last day of a taxable period, the parties shall treat such day as the last day of a taxable period. The parties agree that they will treat the Company as if it ceased to be part of the affiliated group of corporations of which Seller is a member within the meaning of a Company Group (including Taxes for which section 1504 of the Company may be liable pursuant to Treasury Regulation § 1.1502-6 Code, and any comparable or similar provisions provision of state, local or foreign laws or regulations, as of the close of business on the Closing Date.
(f) Buyer and Seller agree to cooperate and share, before, at and after the Closing, all required information on a timely basis in order to timely file all Tax Returns, reports, returns, schedules and any other documents required to be filed with respect to Taxes and all claims for refunds of Taxes and for the preparation of any audit, and for the prosecution or defense of any claim or proceeding relating to any proposed adjustment. Buyer and Seller agree to retain or cause to be retained all Tax Returns, and books and records pertinent to the Business until the applicable period for assessment under applicable law as (giving effect to any and all extensions or waivers) has expired, and to abide by or cause the abidance with all record retention agreements entered into with any Governmental Authority. Buyer and Seller shall cooperate with each other in the conduct of any audit or other proceedings involving Pre-Closing Taxes. Seller shall have the right to, at its own expense, control any audit or examination by any Governmental Authority ("Tax Audit") with respect to Pre-Closing Taxes and to employ counsel of its choice at its expense, provided that Buyer shall be entitled to participate in any such Tax Audit and Seller shall not settle any such Tax Audit without Buyer’s consent (not to be unreasonably withheld) to the extent such settlement could adversely affect Buyer or its Affiliates for a result of having been taxable period or portion thereof beginning after the Closing Date. For clarification, Seller may settle any such Tax Audit without Buyer’s consent if such settlement could not adversely affect Buyer or its Affiliates for a member taxable period or portion thereof beginning after the Closing Date. Notwithstanding the foregoing, in the case of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that begins before and ends after Closing, Seller shall be entitled to participate at its expense in any Tax Audit relating in any part to Taxes attributable to the portion of such period deemed to end on or before the Closing Date and Date, but Buyer shall control the portion Tax Audit. None of Buyer, any of its Affiliates or the Company may settle or otherwise dispose of any Straddle Period Tax Audit for which Seller may have a liability under this Agreement, or that may result in an increase in Seller’s liability under this Agreement, without the prior written consent of Seller, which consent may not be unreasonably withheld. At Seller’s request, Buyer shall cause the Company to make or join with Seller in making elections with respect to its Tax Returns for periods ending on and including or before the Closing Date (Closing, provided that the “Pre-Closing Tax Period”), except, in each case, to the extent making of such Taxes were included election does not have a materially adverse effect on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of Buyer or the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Prepost-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(ivg) Any payment by Buyer or Seller under this Section 8.1 will, for Tax purposes, be deemed an adjustment to the Purchase Price, unless otherwise required by Law.
(h) All Tax sharing agreements or similar arrangements with respect to or involving the Company shall exclude the Company effective immediately after the Closing.
(i) All excise, sales, use, transfer (including real property transfer or gains), stamp, documentary, filing, recordation and other similar taxes, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties (the "Transfer Taxes"), resulting from the transfer of the Shares pursuant to this Agreement shall be borne by Buyer.
(j) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against not sell any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed of the Assets on the transactions contemplated by this AgreementClosing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Connecticut Light & Power Co)
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and Buyer’s Affiliates against, all Losses and Expenses incurred by such which Buyer Group Member or Buyer’s Affiliates suffer or incur as a result of, arising out of or relating to (i) Taxes applicable to the Business, the Purchased Assets or the Assumed Liabilities, in connection with or arising from each case attributable to Pre-Closing Tax Periods, (Aii) Taxes imposed on the Company Seller, or for which the Company Seller may otherwise be liable as a result liable, (iii) Taxes of having been any member of an affiliated, consolidated, combined or unitary group of which Seller (or any predecessor thereof) is or was a member on or prior to the Closing Date, (iv) Taxes of a Company Group any Person imposed on Seller arising under the principles of transferee or successor liability or by Contract, (including v) Taxes for which the Company may be liable Seller is responsible pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company GroupSection 6.12(a)(ii) and (Bvi) claims of creditors of Seller arising out of or connected with its failure to comply with the requirements of any Laws relating to “bulk transfer” or “bulk sales”, or its failure to discharge such claims. For purposes of this Section 6.12, Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of with respect to any Straddle Period ending shall be allocated on and including the Closing Date (the a “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes closing of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the books” basis by treating any Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of as two taxable years or partial periods, one which ended ending at the close of the Closing Date and the other which began at the beginning of on the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of after the Closing Date, provided, however, except that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, (such as real, personal and intangible property Taxes and depreciation deductions, similar ad valorem obligations) imposed on a periodic basis shall be apportioned between allocated proportionately based on the number of days of such two taxable years Straddle Period in a Pre-Closing Tax Period and the number of the remaining days of such Straddle Period.
(ii) Notwithstanding Section 6.12(a)(i), any sales Tax, use Tax, real property transfer or periods on a daily basisgains Tax, asset transfer Tax, documentary stamp Tax or similar Tax attributable to the sale or transfer of the Business, the Purchased Assets or the Assumed Liabilities shall be paid one-half by Seller and one half by Buyer. Each Party agrees to timely sign and deliver such certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise reduce), or file Tax Returns with respect to, such Taxes.
(iii) Seller shall be entitled provide reimbursement for any Tax paid by Buyer all or a portion of which is the responsibility of Seller in accordance with the terms of this Section 6.12 promptly after Buxxx xives written notice to the amount of any refund or credit of Taxes Seller of the Company (including any interest relating thereto) with respect Tax payable and the portion that is the liability of Seller; provided, however, that failure of Buyer to a Pre-Closing Tax Period give such written notice to Seller shall not preclude Buyer from recovering such amounts pursuant to this Section 6.12(a), unless and to the extent that Seller was actually prejudiced by such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)failure.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Liability for Taxes. (ia) Seller Except as shown as a liability or reserve on the Balance Sheet, Stockholder shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and against, all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date Date.
(b) Buyer shall be liable for, and indemnify Stockholder against, Taxes imposed on the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on Company for any taxable year or period that begins after the Closing Date Balance Sheet and taken into account in determining and, with respect to any Straddle Period, the Adjusted Purchase Priceportion of such Straddle Period beginning after the Closing Date.
(iic) For purposes of paragraph paragraphs (a)(i)a) and (b) of this Section 11.1, ------------ whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company were closed at the close of the Closing Date, provided, -------- however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an ------- annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiid) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer Stockholder will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall will indemnify Buyer and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from the Company against, any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
(e) Within 20 days after the date of this Agreement, Stockholder will deliver or cause to be delivered to Buyer true and complete copies of: (i) all income Tax Returns of the Company requested by Buyer, including applicable portions of Tax Returns of the Company Group; and (ii) any work papers or other supporting data requested by Buyer relating to "income Taxes payable" reflected in the Audited Financial Statements and the Unaudited Financial Statements, relating to Tax Returns made available pursuant to (i), or relating to Tax Returns referred to in (i) not yet filed.
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Liability for Taxes. (ia) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall defend, indemnify and hold Buyer harmless each Buyer Group Member from and against against, (i) any and all Losses and Expenses Taxes incurred by such Buyer Group Member in connection with USTMAN for any taxable period ending on or before the Closing Date, (ii) any income Taxes caused by, or arising from, the Section 338(h)(10) Election, (iii) any transfer or sales Taxes arising from the transactions contemplated in this Agreement, other than transfer or sales Taxes that are imposed because of the Section 338(h)(10) Election if such Taxes are in excess of the transfer or sales Taxes that would have been imposed if the Section 338(h)(10) Election had not been made, (Aiv) any Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group with respect to any payment from Seller under this sentence and (including v) any Taxes for a Consolidated Group with Seller of which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing USTMAN is determined to be a member part. Any Tax refunds received by Buyer relating to the Tax liability of USTMAN for a period ending on or before the Closing Date shall be the property of Seller other than Tax refunds generated because of a Buyer tax attribute. Seller will ensure that with respect to any Company GroupTax partnership listed on the Tax Certificate, the appropriate party has made or will make a valid election under Section 754 of the Code with respect to each such Tax partnership in the time and in the manner provided in Regulation ss. 1.754-1(b) such that each such election is in effect for the taxable year of each such Tax partnership that includes the Closing Date.
(b) Seller shall prepare, or cause USTMAN to prepare, and submit to Buyer all Tax Returns of USTMAN (and any Tax partnerships in which (i) USTMAN owns an interest and (Bii) Seller or USTMAN has responsibility for preparing and filing partnership Tax Returns) for Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends ending on or before the Closing Date and for which the portion due date of any Straddle Period such Tax Return is subsequent to the Closing Date. Any such Tax Return shall be prepared on a basis consistent with Tax Returns prepared with respect to USTMAN for prior taxable periods, unless otherwise required by law, and shall be submitted to Buyer not later than (i) in the case of any United States federal income Tax Return, 60 days before the due date of such Tax Return, and (ii) in the case of any other Tax Return, 30 days before the due date of such Tax Return. Seller is responsible for filing any such Tax Return and for preparing and filing any other Tax Return of USTMAN for Taxes for any taxable period ending on and including or before the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(iic) For purposes of paragraph (a)(i)Buyer and its Affiliates, whenever it is necessary including USTMAN, are responsible for preparing and filing with the appropriate taxing authorities all Tax Returns which relate to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the USTMAN other than those described in Section 6.14(c), except that Tax Returns which relate to a Post-Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between completed by Buyer. Seller shall cooperate with Buyer and shall make available all necessary records and timely take all action necessary to allow Buyer to file, or prepare and file, as the case may be, the Tax Returns described in this paragraph (including, without limitation, providing or causing to be provided to Buyer any powers of attorney which Buyer shall request for purposes of filing any such two taxable years or periods Tax Returns). Such Tax Returns shall be prepared on a “closing of the books basis” by assuming that the books of the Company were closed at the close of basis consistent with those prepared with respect to USTMAN for taxable periods ending on or before the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basisunless otherwise required by law.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
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Liability for Taxes. (ia) Seller Except as shown as a liability or reserve on the Closing Date Balance Sheet, Dxxxxxx Xxxx shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and defend, hold harmless and indemnify each Buyer CLARCOR Group Member from and against any and against, all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including including, without limitation, Taxes for which the Company may be liable pursuant to Treasury Regulation Treas. Reg. § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for in respect of Taxes payable in respect of any taxable year or period that ends on or before the Closing Date and Seller Period and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax constituting a Seller Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(iib) CLARCOR shall be liable for, and shall defend, hold harmless and indemnify Stockholders against, Taxes imposed on the Company for any Buyer Period and, with respect to any Straddle Period, any portion of such Straddle Period constituting a Buyer Period.
(c) For purposes of paragraph paragraphs (a)(i)a) and (b) of this Section 11.1, whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between the Seller Period and Buyer Period includible in such two taxable years or periods Straddle Period on a “closing of the books basis” by assuming that the books of the Company were closed at the close end of the Closing DateSeller Period, provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiid) Seller shall be entitled to the amount of any refund All sales, use, transfer, documentary, stamp, registration, conveyance, value added or credit of Taxes of the Company other similar taxes, duties, fees, excises or governmental charges (including any interest relating theretopenalties and interest) imposed by any taxing jurisdiction, domestic or foreign, and all recording or filing, notarial fees and other similar costs of Closing with respect to a Pre-Closing Tax Period to the extent such Taxes were paid transfer of the Shares will be borne by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the ClosingStockholders, net of any cost to Buyer jointly and its Affiliates severally. The Stockholders shall be responsible for all taxes attributable to the obtaining Company’s operations for all Seller Periods, and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by SellerCLARCOR, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through and the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer Company shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date jointly and is severally responsible for all taxes attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Company’s operations for all Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Periods.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall Article X (and subject to the applicable limitations thereof), Seller agrees to indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) all Taxes for any taxable year that ends on or before the Closing Date (or the portion of any Straddle Period ending on and including the Closing Date) and imposed on any of the Company Acquired Companies pursuant to Treasury Regulation Section 1.1502-6 or for which the Company may otherwise be liable similar provision of state or local law solely as a result of any such Acquired Company having been a member of a Company Consolidated Tax Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateany Tax sharing agreement, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes any income Tax imposed on any of the Company or for which the Company may otherwise be liable Acquired Companies for any taxable year or period that ends on or before the Closing Date (including all income Taxes required to be shown on the Acquired Companies’ Tax Return for its short taxable year ending on the Closing Date, determined in accordance with Treasury Regulation Section 1.1502-76(b) or any comparable provision of state or local Law), and with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date Date; (C) all Taxes imposed on any of the “PreAcquired Companies as a result of, arising from or related to any Non-Business Divestitures (regardless of whether such Taxes imposed on the Non-Business Divestitures are attributable or allocable to taxable years ending prior to, on, or after the Closing Date); (D) all income Tax Period”)on deferred intercompany income or gain of the Acquired Companies as a result of, exceptarising from or related to the Non-Business Divestitures that occurred after October 31, in each case2006, to the extent that the Acquired Companies would have been subject to income Tax on such deferred intercompany income or gain in a Tax period ending on or prior to the Closing Date if Regulation Section 1.1502-13 (or similar provisions of state or local Law) did not apply; and (E) all withholding Taxes were included required to be withheld or collected under Chapter 3 of the Code on or prior to the Closing Date; provided, however, that Seller shall not be liable for or pay, and shall not indemnify or hold harmless any Buyer Group Member from and against, (1) any Taxes shown as a liability or reserve on the Closing Date Balance Sheet and taken into account included in Closing Date Net Working Capital or that are included in the calculation of Pre-Closing Tax Obligations to the extent such amounts were deducted in determining the Adjusted Purchase Price.
Price pursuant to Article II; (ii2) For purposes of paragraph any Taxes (a)(i), whenever it is necessary to determine the liability for Taxes other than as described in clause (C) above) imposed on any of the Company Acquired Companies or for a Straddle Period, the determination which any of the Taxes Acquired Companies may otherwise be liable as a result of transactions occurring on the Company for Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treasury regulation Section 1.1502-76(b)(1)(ii)(B)) to the portion of the Straddle Period ending on Closing Date after the Closing, (3) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of U.S. state, local or foreign law as a result of the purchase of the Shares or that result from Buyer, any Affiliate of Buyer, or any of the Acquired Companies engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a purchase or sale of assets of any Company for Tax purposes, and including (4) notwithstanding anything to the contrary herein, any Taxes resulting from a sale of any of the Acquired Companies (or any assets thereof) by Buyer (Taxes described in this proviso, the “Excluded Taxes”). Buyer and Seller agree that, with respect to any transaction described in clause (2) of the preceding sentence, each Acquired Company and all Persons related to any such Acquired Company under Section 267(b) of the Code immediately after the Closing Date shall be determined by assuming that treat the Straddle Period consisted of two taxable years or periodstransaction for all federal income Tax purposes (in accordance with Treasury regulation Section 1.1502‑76(b)(1)(ii)(B)) and (to the extent permitted) for other income Tax purposes, one which ended at the close of the Closing Date and the other which began as occurring at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) . Seller shall be entitled to the amount of any refund of (or credit of for) Taxes of allocable to any taxable year or period that ends on or before the Company (including any interest relating thereto) Closing Date and, with respect to a Pre-Closing Tax any Straddle Period, the portion of such Straddle Period to the extent such Taxes were paid by the Company prior to ending on and including the Closing or by a Seller after Date. Upon the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closingrequest of Seller, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, file (or cause to be paidfiled), to Seller Tax Returns (including amended Tax Returns) or other documents claiming any amount refunds to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by preceding sentence, and Buyer or shall, and shall cause its Subsidiaries. To the extent requested by SellerAffiliates, Buyer will to otherwise take such steps as may be reasonably cooperate with Seller in obtaining available to secure any such refund or credit; provided that Buyer shall not be required to take, including through the filing of or to cause any Acquired Company, to take a position on any Tax Return or amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required Return to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to secure any refund or credit with respect for Seller if Buyer’s accountants have advised Buyer that taking such a position would likely subject Buyer or the Acquired Companies to Taxes (including any interest relating thereto) Tax penalties; provided, further, that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable Buyer shall not be required to the Company and, pay over to the extent such refund is actually received by Seller or its Affiliates, any such refund or the amount of any such credit shall be paid by Seller up to Buyer within fifteen the amount of any Tax asset (15excluding any deferred Tax asset established to reflect timing differences between book and Tax income) days set forth on the face of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account included in determining the Adjusted Purchase PriceClosing Date Net Working Capital. Buyer and Seller shall take reasonable steps as may be requested by reimburse Buyer for the other Party to obtain costs of preparing and filing any Tax Returns filed solely for the purpose of securing any refund or credit required to which be paid over to Seller (subject to the right of Buyer to retain such Party is entitled under refund pursuant to the immediately preceding sentence of this subparagraph (iiiSection 7.1(a)(i)).
(ivii) Buyer shall be liable for and pay, and pursuant to ARTICLE XI Article X (and subject to the limitations thereof) shall indemnify and hold harmless each Seller Group Member from and against against, (A) any and all Losses incurred by Seller in connection with or arising from Taxes imposed on any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Taxof the Acquired Companies, or other similar Tax imposed on for which any of the transactions contemplated by this Agreement.Acquired Companies may otherwise be liable, for any taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B)
Appears in 1 contract
Liability for Taxes. (ia) Seller The Unit Holders shall be liable for and pay, and pursuant to ARTICLE XI Article X shall indemnify and hold the Coty Indemnified Parties harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member resulting from or in connection with or arising from (A) income Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable its Subsidiaries for any taxable year or period that ends on or before the Closing Date and (a “Pre-Closing Tax Period”) and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (Date; provided, however, that the “Pre-Closing Unit Holders shall not be liable for any Tax Period”), except, in each case, liability to the extent such Taxes were included on Tax liability is individually identified as a current liability and reflected in the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceWorking Capital Amount.
(iib) For purposes of paragraph clause (a)(ia), whenever it is necessary to determine the liability for Taxes of the Company or any Person with respect to the Company or its Subsidiaries for a Straddle Period, the determination of the such Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company or with respect to such Person for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company such Person were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual a periodic basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Contribution Agreement (Coty Inc.)
Liability for Taxes. (ia) Seller From and after Closing, Sellers shall be liable for and payfor, and pursuant shall indemnify, severally (in proportion to ARTICLE XI their respective interests in the Company prior the transactions contemplated by this Agreement) and not jointly, and hold harmless Purchaser, the Company, and their respective Affiliates from and against all Taxes of the Company or the Subsidiaries for any Pre-Closing Period; provided, however, that Sellers shall be liable only to the extent that such Taxes exceed the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) and taken into account in determining the Purchase Price after giving effect to all the adjustments set forth in Section 2.2.
(b) From and after Closing, Purchaser shall be liable for, and shall indemnify and hold harmless each Buyer Group Member Sellers and their respective Affiliates from and against any and (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on of the Company or and the Subsidiaries for which the Company may otherwise any Post-Closing Period and (ii) any Transfer Taxes required to be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable borne by Purchaser pursuant to Treasury Regulation § 1.1502-6 or similar provisions Section 11.3.
(c) Whenever it is necessary for purposes of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing this Agreement to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and determine the portion of any Taxes for a Straddle Period which is allocable to the Pre-Closing Period or the Post-Closing Period, any Taxes attributable to the Straddle Period that are based on or related to income, gains, or receipts will be allocated between the Pre-Closing Period and the Post-Closing Period based on an interim closing of the books (such Taxes allocable to the Pre-Closing Period being determined as if such taxable period ended as of the end of the Closing Date) and any other Taxes will be prorated between the Pre-Closing Period and the Post-Closing Period based upon the number of days in the applicable period ending on and including the Closing Date (and the “Pre-Closing Tax Period”), except, number of days in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending beginning on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of after the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Rex Energy Corp)
Liability for Taxes. (i) Seller shall be liable for and payFor purposes of this Agreement, and pursuant the portion of Taxes attributable to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with the income, property or arising from (A) Taxes imposed on operations of the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends begins on or before the Closing Date and ends after the Closing Date (a “Straddle Period”) will be apportioned between the portion of any the Straddle Period ending that begins on or before the Closing Date and ends on and including includes the Closing Date (the “Pre-Closing Tax Straddle Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet ) and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including that begins the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of day after the Closing Date and the other which began ends at the beginning end of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a (the “closing of the books basis” by assuming that the books of the Company were closed at the close of the Post-Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iiiStraddle Period”) Seller shall be entitled to the amount of any refund or credit in accordance with this Section 5.9(a). The portion of Taxes of the Company (including any interest relating thereto) with respect attributable to a Pre-Closing Straddle Period will: (i) in the case of any income, sales or use taxes, value-added taxes, employment taxes, withholding taxes and any other Tax based on or measured by income, business activity, receipts or profits earned during a Straddle Period, be deemed to equal the amount that would be payable if the Straddle Period to the extent such Taxes were paid by the Company prior to ended on and included the Closing or Date; and (ii) in the case of personal property, real property, ad valorem and other Taxes not described in clause (i) during a Straddle Period, be deemed to be the amount of the Taxes for the entire Straddle Period multiplied by a Seller after fraction, the numerator of which is the number of days in the Pre-Closing pursuant to Section 8.2(a) or ARTICLE XI Straddle Period and the denominator of which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net number of any cost to Buyer and its Affiliates days in such Straddle Period. The portion of Taxes attributable to a Post-Closing Straddle Period will be calculated in a corresponding manner. For purposes of calculating Pre-Closing Taxes and the obtaining and receipt apportionment of such refund or creditTaxes under this Section 5.9(a), except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included all transactions occurring on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date (other than transactions required to effect this Agreement and is attributable to transactions in the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit Ordinary Course Of Business) shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included treated as occurring on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)following day.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Novation Companies, Inc.)
Liability for Taxes. (a) Purchasers shall be jointly and severally liable for, and shall indemnify Seller Indemnitees against, all Taxes arising or resulting from (i) Seller the conduct of the Business by any of Purchasers or the Acquired Entities or the ownership of the Acquired Assets for taxable periods or portions thereof beginning after the Closing Date or (ii) any transaction relating to the Business or the Acquired Assets that Purchasers or any of its Affiliates causes to occur on or after the Closing Date and the assumption of the Assumed Liabilities by Purchaser pursuant to this Agreement.
(b) Sellers shall be jointly and severally liable for and paythey agree to indemnify, and pursuant to ARTICLE XI shall indemnify defend and hold Purchaser Indemnities harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (Ai) Taxes any Tax imposed on an Acquired Entity if and to the Company or for which the Company may otherwise be liable as a result of having been a member extent that such Tax arises in respect of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends ended on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the a “Pre-Closing Tax Indemnity Period”), except, in each case, (ii) any Tax that constitutes a lien or Encumbrance on the Acquired Assets if and to the extent that such Taxes were included Tax arises in respect of a Tax Indemnity Period, (iii) any Tax or other Losses resulting from the inaccuracy or breach of any representation or warranty set forth in Section 6.16 or the breach of any covenants set forth in Section 11.2, and (iv) any costs and expenses (including, without limitation, reasonable expenses of investigation and attorneys’ fees and expenses) arising out of the imposition or assessment of any Tax, Losses or other costs described in clause (i), (ii) or (iii) (“Other Costs”), and the filing of any Returns for a taxable period ending on or before the Closing Date Balance Sheet Date, including those incurred in the contest of good faith of any such imposition, assessment or assertion. Any Tax imposed as a result of the sale of the Business and taken into account the Purchased Assets to Purchaser and the assumption of the Assumed Liabilities by Purchaser pursuant to this Agreement shall be deemed to arise in determining the Adjusted Purchase Pricerespect of a Tax Indemnity Period.
(iic) For purposes of paragraph subsections (a)(i)a) and (b) of this Section 11.1, whenever it is necessary to determine the liability Liability for Taxes of the Company for a Straddle Period, the determination of the such Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be apportioned between Sellers and Purchasers (A) in the case of Taxes other than income, sales and use and withholding taxes, on a per diem basis and (B) in the case of income, sales and use and withholding taxes, as determined by assuming that as though the Straddle Period consisted of two taxable years or periods, one which ended at the close of on the Closing Date and the other which began at the beginning of the day following the Closing Date and items Date.
(d) Purchasers shall pay to Sellers the amounts received by Purchasers or any of incomePurchasers’ Affiliates of any refund, gain, deduction, loss abatement or credit of (A) Taxes which are attributable to the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing conduct of the books basis” by assuming that Business or the books ownership of the Company were closed at Acquired Assets on or prior to the close Closing Date and (B) any other Tax Assets. In the case of any Straddle Period, Purchasers shall pay to Sellers the amount received by any of the Closing Date, provided, however, that exemptions, allowances, deductions Purchasers or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount any of their Affiliates of any refund refund, abatement or credit of Taxes that would have been made had the Taxable Period ended on the Closing Date.
(e) Any assessment or other Claim by a governmental authority seeking to enforce or collect a Tax, Losses or Other Costs described in Section 11.1 shall be subject to the provisions of Section 10.4, 10.5, 10.6, 10.8 and 10.9 of this Agreement to the Company extent that Section 11.2 does not apply to such assessment or Claim.
(including f) For the avoidance of doubt, notwithstanding any interest relating thereto) with respect to a Pre-Closing Tax Period other contrary provisions of this Agreement, Sellers shall not be liable for any Taxes or related Losses to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was related Losses are included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Assumed Liabilities.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Stockgroup Information Systems Inc)
Liability for Taxes. (ia) The Company has made an estimated Tax payment of its 2018 Federal and Montana income and premium taxes (the “2018 Tax Estimate”) to the appropriate Tax Authority. To the extent the 2018 Tax Estimate paid by the Company is less than or does not fully cover any Taxes owed by the Company for any taxable period (or portion thereof, as determined under Section 10.01(c)) ending on or prior to the Closing Date, Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each the Buyer Group Member Indemnified Parties, from the remaining amount of any such Taxes; provided, that Seller shall not be liable for or pay, and shall not indemnify Buyer from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from against, (A) any Taxes imposed on that result from any actual or deemed election under Sections 336(e) or 338 of the Company Code or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or any similar provisions of state, local or foreign law Law as a result of having been the purchase of the Shares or that result from Buyer, any Affiliate of Buyer or (on or after the Closing Date) the Company engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a member purchase or sale of a assets of the Company Group and for foreign, federal, state, local or other Tax purposes, (B) any Taxes resulting from the ceasing to be a member of any Company Groupfor which Buyer is liable under Section 10.01(b) and (BC) any Taxes imposed on to the Company extent taken into account as a Liability or reserve for which Taxes in preparing the Company may otherwise Statutory Statements as of the Accounts Date (Taxes described in this proviso, “Excluded Taxes”). Seller shall be liable entitled to any refund of Taxes, including but not limited to the 2018 Estimate, received by Buyer or its Affiliates for any taxable year or period that ends ending on or before prior to the Closing Date and the portion of any Straddle Period other amounts credited against Tax for a taxable period ending on and including or prior to the Closing Date (the “Pre-Closing Tax Period”), except, excluding any refund or credit attributable to any loss incurred in each case, to the extent such Taxes were included on a taxable period beginning after the Closing Date Balance Sheet and taken into account applied (e.g., as a carryback) to income in determining a taxable period ending on or prior to the Adjusted Purchase PriceClosing Date). Any such refunds or credits received or utilized by Buyer or its Affiliates shall be promptly, and in any event within thirty (30) days of the receipt or utilization of such refund or credit, paid over to Seller. Buyer shall and shall cause its Affiliates to take reasonable steps to secure any such refund or credit that would be available.
(b) Buyer shall be liable for and pay, and shall indemnify and hold harmless the Seller Indemnified Parties from and against, any Losses with respect to (i) any breach or failure of Buyer to perform any of its covenants or obligations contained in this Article X, (ii) Taxes imposed or required to be paid by a Seller Indemnified Party arising as a result of actions taken by the Company after the Closing Date and (iii) Excluded Taxes.
(c) For purposes of paragraph (a)(iSection 10.01(a) and Section 10.01(b), whenever it is necessary to determine the liability for Taxes of the Company for a taxable period beginning on or before the Closing Date and ending after the Closing Date (a “Straddle Period”), the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall will be determined in the following manner:
(i) in the case of any Taxes that are either based on or related to income or receipts, by assuming that the Straddle Period consisted of two taxable years or stub periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and Date, items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall will be allocated between such two taxable years stub periods or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that (1) transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treasury Regulation Section 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing will be allocated to the stub period that is deemed to begin at the beginning of the day following the Closing Date, and (2) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall will be apportioned between such two taxable years stub periods or periods on a daily basis.; and
(iiiii) Seller shall in the case of Taxes not described in subparagraph (i) above that are imposed on a period basis and measured by the level of any item, such Taxes will be entitled deemed to be the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by for the Company prior to entire period (or, in the Closing or case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period) multiplied by a Seller after fraction the Closing pursuant to Section 8.2(a) or ARTICLE XI numerator of which refund or credit is actually recognized by Buyer or its Affiliates (either the number of calendar days in the Straddle Period ending on and including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the number of calendar days in the Straddle Period after the Closing Date Balance Sheet Date, as the case may be, and taken into account the denominator of which is the number of calendar days in determining the Adjusted Purchase Price. entire relevant period.
(d) Notwithstanding anything herein to the contrary, Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from against, any real property transfer or gains Tax, Transfer Taxes, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Seller shall be liable for and payindemnify, and pursuant to ARTICLE XI shall indemnify defend and hold harmless each of the Buyer Group Member Indemnitees from and against against, and shall compensate and reimburse each of the Buyer Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of the Buyer Indemnitees or to which any of the Buyer Indemnitees may otherwise directly or indirectly become subject at any time (regardless of whether or not such Damages relate to any third party claim) and all Losses and Expenses incurred by such Buyer Group Member in connection with that from or arising from as a result of (A) Taxes imposed on the Company Company, or for which the Company may otherwise be liable liable, as a result of having been a member of a Company Group (including Taxes for which on or before the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) Closing Date and (B) Taxes imposed on the Company Company, or for which the Company may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”)Date; provided, except, in each case, to the extent such Taxes were included that indemnification under this Section 8.02(b)(i) shall not include any amounts resulting from any extraordinary transaction or event occurring on the Closing Date Balance Sheet and taken into account in determining after the Adjusted Purchase PriceClosing.
(ii) For purposes of paragraph (a)(iSection 10.02(b)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as ad valorem and other similar Taxes imposed on property Taxes (“Property Taxes”), franchise based solely on capital, and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to . In determining whether a Pre-Closing Property Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period ending on or before the Closing Date or a Straddle Tax Period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay), or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Property Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from deemed a taxable year or period that begins after the Closing Date and is Property Tax attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included taxable period specified on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)relevant Property Tax xxxx .
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Akerna Corp.)
Liability for Taxes. (i) Seller Except as shown as a liability or reserve on the Balance Sheet, the Management Stockholders shall be liable for and payindemnify CMS Energy, the Surviving Corporation and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and their subsidiaries (collectively, the "Tax Indemnitees") for all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company any Tax Indemnitee (or for which the Company a Tax Indemnitee may otherwise be liable as a result liable) arising from the assets or activities of having been a member Terra and its Subsidiaries for any taxable year or period of a Company Group Terra or its Subsidiaries that ends on or before the Balance Sheet Date and, with respect to any taxable year or period beginning before and ending after the Balance Sheet Date, the portion of such taxable year ending on and including the Balance Sheet Date.
(including Taxes for which the Company may ii) The Tax Indemnitees shall be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions for and indemnify the Management Stockholders for the Taxes of state, local or foreign law as a result of having been a member of a Company Group Terra and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable its Subsidiaries for any taxable year or period that ends on begins after the Balance Sheet Date and, with respect to any taxable year or period beginning before and ending after the Closing Date and Balance Sheet Date, the portion of such taxable year or period beginning after the Balance Sheet Date. Notwithstanding the preceding sentence, the Management Stockholders shall be liable for and indemnify the Tax Indemnitees for 63% of any Straddle Period ending Taxes imposed on and including any Tax Indemnitee (or for which a Tax Indemnitee may otherwise be liable) arising from the Closing Date (disallowance of a deduction for the “Pre-Closing Tax Period”payments described in Section 6.6(a)(xiii)(B), except(C) or (D) or Section 7.5(b). For purposes of the preceding sentence, in each case, no effect shall be given to the extent such Taxes were included on use of credits allowable pursuant to Sections 29 or 53 of the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceCode.
(iiiii) For purposes of paragraph paragraphs (a)(i) and (a)(ii), whenever it is necessary to determine the liability for Taxes of the Company Terra and its Subsidiaries for a Straddle Periodportion of a taxable year or period that begins before and ends after the Balance Sheet Date, the determination of the Taxes of the Company Terra and its Subsidiaries for the portion of the Straddle Period year or period ending on on, and including the Closing portion of the year or period beginning after, the Balance Sheet Date shall be determined by assuming that the Straddle Period consisted of two Terra and its Subsidiaries had a taxable years year or periods, one period which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Balance Sheet Date, provided, however, except that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiiiv) Seller The Management Stockholders shall be liable for all transfer, sales, use or similar Taxes arising from the transactions contemplated by Section 6.6(b).
(v) Within twenty (20) days after the execution of this Agreement, the Stockholders shall deliver or cause to be delivered to CMS Energy or its designee true and complete copies of: (A) all income Tax Returns of Terra and its Subsidiaries requested by CMS Energy or its Subsidiaries; (B) any other Tax Returns of Terra and its Subsidiaries requested by CMS Energy or its Subsidiaries, as may be relevant to Terra and its Subsidiaries and their assets and operations; and (C) any work papers or other supporting data requested by CMS Energy or its subsidiaries relating to "income taxes payable" or similar line item reflected in the Statement of Income or Balance Sheet relating to Tax Returns made available pursuant to (A) or (B), or relating to Tax Returns referred to in (A) or (B) not yet filed, to the extent copies of such Tax Returns, work papers or other data are in existence and in the possession of Terra at the time of such request.
(vi) Surviving Corporation and Subsidiaries shall be entitled to the amount of retain any refund or credit of Taxes of the Company (including any and interest relating theretothereon) with respect attributable to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or other similar items from a taxable year or period that begins ends after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining Date to a taxable year or period that ends on or before the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Balance Sheet Date.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (ia) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member Purchaser and the Company from and against against, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on or incurred by the Company or for which and attributable to any taxable period ending prior to the Company may otherwise be liable Effective Time, and the portion, determined as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of statedescribed in Section 8.1(c), local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) such Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before beginning prior to the Closing Date Effective Time and ending after the Effective Time which is allocable to the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company period occurring prior to the Closing or by a Seller after Effective Time (the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii"Pre-Effective Time Period").
(ivb) Buyer Purchaser shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller and its Affiliates from and against against, any and all Losses Taxes imposed on or incurred by Seller the Company and attributable to any taxable period beginning on or after the Effective Time, and the portion, determined as described in connection Section 8.1(c), of any such Taxes for any taxable period beginning prior to the Effective Time and ending after the Effective Time which is allocable to the portion of such period occurring on or after the Effective Time (the "Post-Effective Time Period").
(c) Whenever it is necessary for purposes of this Agreement to determine the portion of any Taxes of or with respect to the Company for a taxable period beginning prior to and ending after the Effective Time which is allocable to the Pre-Effective Time Period or arising from any real property transfer Taxthe Post-Effective Time Period, sales Taxthe determination shall be made (i) in the case of property, use Taxad valorem or similar Taxes (which are not based on or measured by production), stamp Taxby allocating all such Taxes on a per diem basis, stock transfer Tax(ii) in the case of franchise, capital or similar Taxes (which are not based on or measured by income or profit), by allocating all such Taxes on a period diem basis, and (iii) in the case of other similar Tax imposed on Taxes, by assuming that each of the transactions contemplated Pre-Effective Time Period and the Post-Effective Time Period constitutes a separate taxable period and by taking into account the actual taxable events occurring during each such period.
(d) Any claim for indemnification under this AgreementSection 8.1, except to the extent otherwise provided in this Article 8, shall be resolved in accordance with the procedures described in Section 10.2.
Appears in 1 contract
Liability for Taxes. (ia) Seller Sellers shall be liable for and pay, and pursuant to ARTICLE Article XI (and subject to the limitations thereof) shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from against: (A) all Taxes (whether assessed or unassessed) applicable to the Business, the Purchased Assets or the Assumed Liabilities (other than Taxes imposed on the Company Subsidiaries, or for which the Company Subsidiaries may otherwise be liable liable), in each case attributable to Pre-Closing Tax Periods, (B) all Taxes imposed on any Subsidiary pursuant to Treas. Reg. Section 1.1502-6 or similar provision of state or local law as a result of the Subsidiary having been a member of a Company Group Seller Tax Group, and (including C) all Taxes imposed on the Subsidiaries, or for which the Company Subsidiaries may otherwise be liable, for Pre-Closing Tax Periods; provided, however, that Sellers shall not be liable pursuant to Treasury Regulation § 1.1502-6 for or pay, and shall not indemnify or hold harmless any Buyer Group Member from or against: (I) any Tax liability or reserve taken into account in the calculation of the Closing Net Working Capital as provided for in Section 3.2, (II) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of state, local or foreign law as a result of having been a member the purchase of a Company the issued and outstanding capital stock of Employee Benefits Plans, Inc. or that result from any Buyer Group and Member engaging in any Taxes resulting from activity or transaction that would cause the ceasing transactions contemplated by this Agreement to be treated as a member purchase or sale of any Company Group) assets of Employee Benefits Plans, Inc. for federal, state or local Tax purposes, and (BIII) any Taxes imposed on the Company Purchased Assets, the Business or for which any of the Company may otherwise be liable for Subsidiaries as a result of transactions engaged in by any taxable year or period that ends Buyer Group Member occurring on or before the Closing Date and that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. Section 1.1502-76(b)(1)(ii)(B)) to the portion of any Straddle Period ending the Closing Date after 12:01 a.m. on and including the Closing Date (the “Pre-Closing Tax Period”Taxes described in this proviso hereinafter "Excluded Taxes"). Buyer and Sellers agree that, except, with respect to any transaction described in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
clause (iiIII) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Periodpreceding sentence, the determination Subsidiaries (excluding in this case the LLCs) and all persons related to such Subsidiaries under Section 267(b) of the Taxes of the Company for the portion of the Straddle Period ending on and including Code immediately after the Closing Date shall be determined by assuming that treat the Straddle Period consisted of two taxable years or periodstransaction for all federal income Tax purposes (in accordance with Treas. Reg. Section 1.1502-76(b)(1)(ii)(B), one which ended at and (to the close of the Closing Date and the extent permitted) in accordance with other which began income Tax purposes) as occurring at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer Sellers shall be entitled to any refund of (or credit with respect to for) Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Pre-Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Tax Periods.
(ivb) Buyer shall be liable for and pay, and pursuant to ARTICLE Article XI (and subject to the limitations thereof) shall indemnify and hold harmless each Seller from and against any and Group Member against: (A) all Losses incurred by Seller in connection with Taxes (whether assessed or arising from any real property transfer Taxunassessed) applicable to the Business, sales Tax, use Tax, stamp Tax, stock transfer Tax, the Purchased Assets or the Assumed Liabilities (other similar Tax than Taxes imposed on the transactions contemplated by this Agreement.Subsidiaries, or for which the Subsidiaries may otherwise be liable), in each case attributable to Post-Closing Tax Periods; (B) all Taxes imposed on the Subsidiaries, or for which the Subsidiaries may otherwise be liable, for Post-Closing Tax Periods; and (C)
Appears in 1 contract
Liability for Taxes. (ia) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold Purchaser, the Terminals Companies and their respective Affiliates harmless each Buyer Group Member from any Taxes, together with any costs, expenses, losses or damages, including reasonable expenses of investigation and against any attorneys' and all Losses accountants' fees and Expenses expenses, arising out of or incident to the determination, assessment or collection of such Taxes ("Terminals Tax Losses"), (i) imposed on or incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on any of the Company or for which Terminals Companies by reason of the Company may otherwise be liable as a result several liability of having been a member of a Company Group (including Taxes for which the Company may be liable Terminals Companies pursuant to Treasury Regulation § Regulations Section 1.1502-6 or similar provisions of any analogous state, local or foreign law as a result of or regulation which is attributable to having been a member of a Company Group and any Taxes consolidated, combined or unitary group on or prior to the Terminals Closing Date, (ii) resulting from the Terminals Companies ceasing to be a member of any Company Groupthe affiliated group (within the meaning of Code Section 1504(a)) and that includes Seller, (Biii) Taxes imposed on or incurred by the Company Terminals Companies with respect to any period (or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on thereof) prior to and including the Terminals Closing Date (the “"Terminals Pre-Closing Tax Date Period”"), except, in each case, (iv) attributable to any discharge of indebtedness that may result from any capital contributions by Seller (or an Affiliate of Seller) to any of the extent such Taxes were included on Terminals Companies of any intercompany indebtedness owed by any of the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
Terminals Companies to Seller (ii) For purposes or an Affiliate of paragraph (a)(iSeller), whenever it is necessary (v) resulting from the actions taken under Section 4.12 of this Agreement, or (vi) relating to determine the liability for all income Taxes arising as a result of the Company for a Straddle Period, the determination sale of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date Terminals Stock and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, Terminals Sale; provided, however, that Seller shall not be liable or offer an indemnification for any amount of current liability accrual for Taxes to the extent reflected on the Terminals Closing Balance Sheet with respect to the Terminals Companies.
(b) Purchaser shall be liable for, and shall indemnify and hold Seller and its Affiliates harmless from any Terminals Tax Losses (i) imposed on or incurred by the Terminals Companies with respect to the period after the Terminals Closing Date or (ii) 79 91 with respect to state and local Transaction Taxes incurred by Seller in connection with converting any of the Terminals Companies into limited liability companies pursuant to Section 4.8 hereof (provided, however, that the indemnification by Purchaser pursuant to this clause (ii) shall be limited to those Taxes in excess of the Transaction Taxes which would have arisen had the Terminals Companies been sold as corporations and an election under Section 338(h)(10) of the Code had been made).
(c) Whenever it is necessary for purposes of this Article 10 to determine the portion of any Taxes imposed on or incurred by the Terminals Companies for a taxable period beginning before and ending after the Terminals Closing Date which is allocable to the Terminals Pre-Closing Date Period, the determination shall be made, in the case of property or ad valorem taxes or franchise taxes (which are measured by, or based solely upon capital, debt or a combination of capital and debt), on a per diem basis and, in the case of other Taxes, by assuming that the Terminals Pre-Closing Date Period constitutes a separate taxable period of the Terminals Companies and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances, allowances and deductions or Taxes for a taxable period beginning before and ending after the Terminals Closing Date that are calculated on an annual or periodic basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods to the Terminals Pre-Closing Date Period ratably on a daily per diem basis). Notwithstanding anything to the contrary herein, any franchise Tax paid or payable with respect to any of the Terminals Companies shall be allocated to the taxable period during which the income, operations, assets or capital comprising the base of such Tax is measured, regardless of whether the right to do business for another taxable period is obtained by the payment of such franchise Tax.
(iiid) Seller shall be entitled Purchaser agrees to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, pay to Seller any amount to refund received after the Terminals Closing Date by Purchaser or its Affiliates, including the Terminals Companies, in respect of any Taxes for which Seller is entitled pursuant to the prior sentence within fifteen liable under clause (15a) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiariesthis Section 10.1. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit pay to Buyer. Buyer shall be entitled to Purchaser any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its AffiliatesAffiliates in respect of any Taxes for which Purchaser is liable under clause (b) of this Section 10.1. The parties shall cooperate, each at its own expense, in order to take all reasonably necessary steps to claim any such refund. Any such refund received by a party or credit its Affiliate for the account of the other party shall be paid by Seller to Buyer such other party within fifteen (15) 90 days of the receipt of after such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)received.
(ive) Buyer shall be liable for Purchaser and pay, and pursuant Seller agree not to ARTICLE XI shall indemnify and hold harmless Seller from and against make or cause any and all Losses incurred by Seller election (including an election to ratably allocate items under Treasury Regulations Section 1.1502-76(b)(2)(ii)) to allocate tax items in connection a manner inconsistent with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementSection 10.1(c) hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gatx Corp)
Liability for Taxes. (i) Seller SymmetriCom shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (A) Taxes imposed on the Company or any corporation (other than the Company) that joins with SymmetriCom in filing a combined or consolidated tax return (the "Company Tax Group") for any taxable year, or (B) imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date (including Income Taxes attributable to the Section 338(h) (10) Election) (a "Pre-Closing Period") and, with respect to any period beginning prior to the Closing Date and which does not terminate on the Closing Date (a "Straddle Period"), the portion of any such Straddle Period ending on and including the Closing Date Date; provided, however, that SymmetriCom shall not be liable for and shall not indemnify Purchaser for any (the “Pre-Closing Tax Period”), except, in each case, i) Taxes (other than Taxes attributable to the extent such Taxes were included Section 338(h) (10) Election) imposed on the Company as a result of transactions (other than transactions in the ordinary course of business) occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing or (ii) any Taxes (other than income, franchise or similar Taxes) reflected on the Current Balance Sheet or incurred in the ordinary course of business since the Current Balance Sheet ((i) and taken into account in determining the Adjusted Purchase Price(ii) being referred to as "Excluded Taxes"). SymmetriCom shall be entitled to any refund of Taxes for which it is liable pursuant to this paragraph (a) (i).
(ii) Purchaser shall be liable for (A) all Taxes imposed on the Company, or for which the Company may otherwise be liable, for any taxable year or period that begins after the Closing Date (a "Post-Closing Period") and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B) any Excluded Taxes. Purchaser shall be entitled to any refund of Taxes for which it is liable pursuant to this paragraph (a)(ii).
(iii) For purposes of paragraph paragraphs (a)(i)) and (a)(ii) of this Section 6.09, whenever it is necessary to determine the liability for Taxes ------------ of the Company SymmetriCom for a portion of any Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that (I) Taxes imposed on the Company as a result of transactions (other than transactions in the ordinary course of business) occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date and (II) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
. For purposes of paragraphs (iiia)(i) Seller shall be entitled and (a)(ii) of this Section 6.09, whenever it is necessary to determine the amount of any refund liability for Taxes (other than Excluded Taxes) attributable to real or credit of personal property Taxes of the Company (including for a portion of any interest relating thereto) with respect to Straddle Period, the total amount of such Taxes for the period in question shall be multiplied by a fraction, the numerator of which is the number of days of the Straddle Period that are in the Pre-Closing Tax Period to and the extent such denominator of which is the total number of days in the Straddle Period; provided, however, -------- ------- that any amount of Straddle Period Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining increase in the assessed value of real or personal property as a result of the transactions contemplated by this Agreement shall be borne by Purchaser.
(iv) For purposes of paragraphs (a) (i) and receipt (a) (ii) of such refund or creditthis Section 6.09 whenever it is necessary to allocate an item of income, except to the extent such refund gain, deduction, loss or credit arises as the result of to either a carryback of a loss taxable year or other tax benefit from a Tax period (that ends on or portion thereof) beginning after before the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date, rules consistent with those in Treas. Reg. (S) 1.1502-76(b) shall be applied.
(v) If, as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction or credit that results in an increase in an Income Tax liability for which SymmetriCom would otherwise be liable pursuant to paragraph (a) (i) of this Section 6.09, and is attributable such change results in a decrease in the Income Tax liability of the Company, Purchaser, or any Affiliate or successor thereof for any taxable year or period beginning after the Closing Date or for the portion of any Straddle Period beginning after the Closing Date, SymmetriCom shall not be liable pursuant to the Company and, such paragraph (a) (i) with respect to such increase to the extent of such refund decrease. If, as a result of any action, suit, investigation, audit, claim, assessment or amended Income Tax Return, there is actually received by Seller or its Affiliatesany change after the Closing Date in an item of income, any such refund gain, loss, deduction or credit shall that results in an increase in an Income Tax liability for which Purchaser would otherwise be paid by Seller liable pursuant to Buyer within fifteen paragraph (15a) days (ii) of this Section 6.09, and such change results in a decrease in the receipt Income Tax liability of such refund by Seller. Buyer shall be entitled to SymmetriCom or any refund Affiliate or credit included successor thereof (other than the Company) for any taxable year or period ending on or before the Closing Date or for the portion of any Straddle Period ending on the Closing Date Balance Sheet and taken into account in determining (other than by reason of a carryback of losses or deductions), Purchaser shall not be liable pursuant to such paragraph (a) (ii) with respect to such increase to the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which extent of such Party is entitled under this subparagraph (iii)decrease.
(ivvi) Buyer Purchaser shall be liable for and paypay all Transfer Taxes. For purposes of this Agreement, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and "Transfer Taxes" means all Losses incurred by Seller in connection with or arising from any stamp, recordation, sales, use, real property transfer Taxor gains or similar transfer Taxes attributable to the actual or deemed transfer of property or stock from SymmetriCom or the Company to Purchaser or the Company, sales Tax, use Tax, stamp Tax, stock transfer Tax, together with any penalties or other similar Tax imposed on the transactions contemplated by this Agreementinterest with respect to such taxes.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Symmetricom Inc)
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant agrees to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against against, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on Seller or any of the Company Companies, or for which Seller or any of the Company Companies may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Cut-Off Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “PreCut-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Off Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) . Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund of (or credit with respect to for) Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and for which it is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled liable under this subparagraph (iii)Agreement.
(ivii) Buyer shall be liable for and pay, and pursuant agrees to ARTICLE XI shall indemnify and hold harmless each Seller Group Member from and against against, any and all Losses incurred Taxes imposed with respect to the Business, the Assets and the Assumed Liabilities for any taxable year or period that begins after the Cut-Off Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning immediately after the Cut-Off Date. Buyer shall be entitled to any refund of (or credit for) Taxes for which it is liable under this Agreement.
(iii) For purposes of Sections 8.2(a)(i) and (ii), any Straddle Period shall be treated on a "closing of the books" basis as two partial periods, one ending on the Cut-Off Date and the other beginning immediately after the Cut-Off Date; provided, however, that Taxes imposed on a periodic basis shall be allocated pro rata on a daily basis. Notwithstanding the preceding sentence, if the transactions contemplated by this Agreement result in the reassessment of the value of any of the Assets for property Tax purposes, or the imposition of any property Taxes on such Assets at a rate which is different than the rate that would have been imposed if such transactions had not occurred, then (y) the portion of such property Taxes for the portion of such Straddle Period ending on the Cut-Off Date shall be (1) allocated pro rata on a daily basis, using the assessed value and Tax rate that would have applied had such transactions not occurred, plus (2) 50% of any Incremental Property Taxes, and (z) the portion of such property Taxes for the portion of such Straddle Period beginning immediately after the Cut-Off Date shall be the total property Taxes for such Straddle Period minus the amount described in clause (y).
(iv) Notwithstanding anything herein to the contrary, Buyer agrees to pay, and agrees to indemnify and hold harmless each Seller in connection with or arising Group Member from and against, 50 percent of any and all real property transfer Taxor gains Taxes, sales TaxTaxes, use TaxTaxes, stamp TaxTaxes, stock transfer Tax, Taxes or other similar Tax Taxes imposed on the transactions contemplated by this AgreementAgreement (collectively, "Transfer Taxes"), and Seller agrees to pay, and agrees to indemnify and hold harmless each Buyer Group Member from and against 50 percent of any and all Transfer Taxes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Belk Inc)
Liability for Taxes. (ia) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall defend, indemnify and hold Buyer harmless each Buyer Group Member from and against against, (i) any and all Losses and Expenses Taxes incurred by such Buyer Group Member any of the Subsidiaries for any taxable period ending on or before the Closing Date, (ii) a portion, determined in connection with the manner set forth in this Section 6.15, of any Taxes incurred by any of the Subsidiaries for any taxable period that includes the Closing Date but ends after the Closing Date ("Straddle Period"), (iii) any income Taxes caused by, or arising from, the Section 338(h)(10) Election, (iv) any transfer or sales Taxes arising from the transactions contemplated in this Agreement, other than transfer or sales Taxes that are imposed because of the Section 338(h)(10) Election if such Taxes are in excess of the transfer or sales Taxes that would have been imposed if the Section 338(h)(10) Election had not been made, and (Av) any Taxes imposed with respect to any payment from Seller under this sentence. Any Tax refunds received by the Buyer relating to the Tax liability of a Subsidiary for a period ending on or before the Closing Date shall be the property of the Seller other than Tax refunds generated because of a Buyer tax attribute. Seller will ensure that with respect to any Tax partnership listed on the Company or Tax Certificate, the
(b) If a Straddle Period exists for which any of the Company may otherwise be liable Subsidiaries for any Tax purpose, the Buyer, Seller, and such Subsidiary, to the extent permitted by law, shall elect to treat such period for purposes of this Agreement as consisting of two periods: (i) a result period beginning with the first day of having been a member of a Company Group the Straddle Period and ending on the Closing Date (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502"Pre-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company GroupClosing Period") and (Bii) a period beginning immediately after the Closing Date and ending with the last day of the Straddle Period ("Post- Closing Period"). If applicable law does not permit such an election to be made, Taxes imposed for the entire Straddle Period shall be apportioned between the Pre-Closing Period and the Post-Closing Period under the interim-closing-of-the-books method applied on the Company or for which the Company may otherwise Closing Date, except that exemptions, allowances, deductions, and credits calculated under Applicable Law on an annual basis shall be apportioned on a per diem basis between these two periods. Seller shall be liable for the Taxes apportioned to the Pre-Closing Period.
(c) Seller shall prepare, or cause the Subsidiaries to prepare, and submit to Buyer all Tax Returns of the Subsidiaries (and any Tax partnerships in which (i) a Subsidiary owns an interest and (ii) Seller or a Subsidiary has responsibility for preparing and filing partnership Tax Returns) for Taxes for any taxable year or period that ends ending on or before the Closing Date and for which the portion due date of any Straddle Period ending such Tax Return is subsequent to the Closing Date. Any such Tax Return shall be prepared on a basis consistent with Tax Returns prepared with respect to the Subsidiaries for prior taxable periods, unless otherwise required by law, and
(d) Buyer and its Affiliates, including the Closing Date (Subsidiaries, are responsible for preparing and filing with the “Pre-Closing appropriate taxing authorities all Tax Period”), except, in each case, Returns which relate to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Subsidiaries other than those described in Section 6.15(c), except that Tax Returns which relate to a Post-Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between completed by the Buyer. Seller shall cooperate with the Buyer and shall make available all necessary records and timely take all action necessary to allow Buyer to file, or prepare and file, as the case may be, the Tax Returns described in this paragraph (including, without limitation, providing or causing to be provided to Buyer any powers of attorney which Buyer shall request for purposes of filing any such two taxable years or periods Tax Returns). Such Tax Returns shall be prepared on a “closing of basis consistent with those prepared with respect to the books basis” by assuming that the books of the Company were closed at the close of Subsidiaries for taxable periods ending on or before the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basisunless otherwise required by law.
(iiie) Seller shall be entitled Notwithstanding any provision in this Section 6.15 to the amount contrary, the Buyer shall reimburse the Seller for certain Taxes, if any, incurred by the Seller in connection with the liability of any refund an affiliated, combined, or credit unitary group of Taxes of the Company (including any interest relating thereto) corporations with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by income, if any, of the Company prior to Subsidiaries from the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closingperiod from August 31, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit1996, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after through the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause an amount equal to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days 37% of the receipt or recognition net taxable income, reduced by all appropriate expenses, deductions and credits, of the applicable refund or credit by Buyer or its SubsidiariesSubsidiaries for such period determined in accordance with United States federal income tax principles ("Reimbursable Taxes"). To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit The
(f) Any payment made with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from pursuant to this Section 6.15 shall be treated by Seller and Buyer as a taxable year or period that begins after the Closing Date and is attributable nontaxable adjustment to the Company and, to Purchase Price for the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Shares.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Seller Sellers shall be liable for and payindemnify the Buyer and the Company for all Taxes attributable to, and pursuant all costs and expenses (such Taxes, costs, and expenses collectively referred to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (Aas "Tax Losses") attributable to Taxes imposed on of the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant and Subsidiaries payable with respect to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of such period ending on and including the Closing Date; provided, however, that Sellers shall not be liable hereunder for (i) such Taxes to the extent reflected on the Financial Statements, and (ii) any Taxes imposed on the Company and Subsidiaries or for which the Company and Subsidiaries may otherwise be liable as a result of transactions occurring after the Closing Date. The Sellers shall be entitled to any refund of (or credit for) Taxes allocable to any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included refund is not reflected on the Financial Statements and to the extent such refund is not attributable to transactions occurring after the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to liable for Taxes imposed on the Company and Subsidiaries or for which the Company and Subsidiaries may otherwise be liable for any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, with respect to any Straddle Period, the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt portion of such refund by Seller. Buyer shall be entitled to any refund or credit included on Straddle Period beginning after the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Date.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Paxson Communications Corp)
Liability for Taxes. (i) Seller shall be liable for and payFor purposes of this Agreement, and pursuant Taxes attributable to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or includes (but does not end on) the Closing Date (a “Straddle Period”) will be apportioned between the period of the Straddle Period that begins before the Closing Date and the portion of any Straddle Period ending ends on and including includes the Closing Date (the “Pre-Closing Tax Straddle Period”), except, in each case, to ) and the extent such Taxes were included on period of the Straddle Period that begins the day after the Closing Date Balance Sheet and taken into account in determining ends at the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes end of the Company for Straddle Period (the “Post-Closing Straddle Period”) in accordance with this Section 9.1(a). The portion of Taxes attributable to a Pre-Closing Straddle Period shall (i) in the case of any sales or use taxes, value-added taxes, employment taxes, withholding taxes and any other Tax based on or measured by income, business activity, receipts or profits earned during a Straddle Period, be deemed to equal the determination of the Taxes of the Company for the portion of amount that would be payable if the Straddle Period ending ended on and including included the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, (provided, however, that exemptions, allowances, deductions any exemptions or Taxes allowances that are (a) calculated on an annual or other periodic basis, such as property Taxes ; and depreciation deductions(b) applicable to a Tax Return that is filed by the Company with a state or local Governmental Authority, shall be apportioned allocated between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled the Pre-Closing Straddle Period and the Post-Closing Straddle Period in proportion to the amount number of any refund or credit days in each such period); and (ii) in the case of personal property, real property, ad valorem and other Taxes of the Company (including any interest relating thereto) with respect imposed on a periodic basis during a Straddle Period, be deemed to be the amount of the Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the Pre-Closing Tax Straddle Period to and the extent denominator of which is the number of days in such Straddle Period. The portion of Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Post-Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer Straddle Period shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from calculated in a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)corresponding manner.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (ia) Seller shall be liable for for, shall pay (or caused to be paid) and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each the Buyer Group Member Parties from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company Acquired Entities or on Seller for which (A) any taxable period ending on or prior to the Company may otherwise be liable Closing Date, (B) all Taxes imposed on the Group Members as a result of having been a member the provisions of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § Regulations Section 1.1502-6 or similar the analogous provisions of any state, local or foreign law as law, and (C) with respect to any taxable period beginning before and ending on or after the Closing Date (a result “Straddle Period”), the portion of having been a member such Straddle Period ending on the close of a Company Group and any Taxes resulting from business on the ceasing Closing Date, in the manner described in Section 7.1(c).
(b) The Buyer Parties shall be liable for, shall pay (or cause to be a member of any Company Grouppaid) and (B) shall indemnify and hold harmless the Seller Indemnitees from and against all Taxes imposed on the Company Acquired Entities or for which the Company may otherwise be liable on any Buyer Party or any Acquired Entity (A) for any taxable year or period that ends on or before beginning after the Closing Date and and, (B) with respect to any Straddle Period, the portion of such Straddle Period following the Closing Date; provided that the Buyer Parties shall have no liability for Taxes to the extent that such Taxes are indemnifiable by Seller under this Agreement.
(c) For purposes of this Article VII, to the greatest extent permitted by Law or administrative practice, the Parties shall cause the Tax Year of each of the Acquired Entities for purposes of any Tax to close on the Closing Date. In the case of any Straddle Period, the amount of any Taxes for the portion of such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that based on an interim closing of the Straddle Period consisted books as of two taxable years or periods, one which ended at the close of business on the Closing Date Date. In the case of Taxes imposed on a periodic basis (including real and personal property Taxes) for a Straddle Period, Seller shall be liable for the other which began at the beginning product of the day following the Closing Date and items amount of income, gain, deduction, loss or credit of the Company such Taxes for the Straddle Period shall be allocated between (or, in the case of such two taxable years or periods Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding Tax period) and a “closing fraction, the numerator of which is the books basis” by assuming that the books number of the Company were closed at the close of days up to and including the Closing Date, providedand the denominator of which is the number of days in the entire relevant Straddle Period, howeverand Buyer shall be liable for the remaining amount of such Taxes. In the case of Taxes not described in the preceding sentence (such as franchise Taxes, that exemptions, allowances, deductions or Taxes that are calculated on an annual basisbased upon or related to income or receipts, such as based upon occupancy or imposed in connection with any sale or other transfer or assignment of property Taxes and depreciation deductions(real or personal, shall be apportioned between such two taxable years tangible or periods on a daily basis.
(iii) Seller shall be entitled to intangible)), the amount of any refund or credit of such Taxes shall be determined as if such taxable period ended as of the Company close of business on the Closing Date. For purposes of any Tax that is payable for a Straddle Period (including any interest relating thereto) with respect to a Pre-Closing Tax Period to real and personal property Taxes), the extent Buyer Parties shall be responsible for the timely payment of such Taxes were paid by and the Company Buyer Parties shall notify Seller of the proration of such Taxes as set forth herein. Seller shall pay to Buyer its share of such Taxes at least two days prior to the Closing or by a Seller after due date for such Taxes (or, if later, within 10 days following receipt of the Closing pursuant to Section 8.2(anotice of billing).
(d) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable Notwithstanding anything in this Agreement to the obtaining and receipt contrary, each of such refund or creditSeller, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet one hand, and taken into account in determining the Adjusted Purchase Price. Buyer Parties, on the other hand, shall paybe liable for, shall pay (or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller the other from and against one-half of any Transfer Taxes. Buyer shall prepare and timely file (or cause to be prepared and timely filed) when due all Losses incurred by Tax Returns required to be filed in respect of Transfer Taxes and shall remit (or cause to be remitted) to the applicable Governmental Authorities the Transfer Taxes shown to be due in respect of such Tax Returns, and shall provide Seller proof of such payment. Seller shall reasonably cooperate with the Buyer Parties in connection with or arising from the preparation and filing of any real property transfer Taxsuch Tax Returns.
(e) The obligations of Seller to indemnify and hold harmless the Buyer Parties, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by one hand, and the obligations of the Buyer Parties to indemnify and hold harmless the Seller Indemnitees, on the other hand, pursuant to this AgreementSection 7.1 shall terminate 60 days after the expiration of the statute of limitations applicable to any indemnifiable Taxes.
(f) Except as otherwise provided herein, whenever Seller shall be required to pay to Buyer or any Buyer Party shall be required to pay to any Seller Indemnitee an amount pursuant to this Section 7.1, such payments shall be made on the later of ten Business Days after such payments are requested or two Business Days before the requesting party is required to pay the related Tax liability.
(g) For all Tax purposes, the Parties agree to treat indemnity payments made pursuant to this Article VII or Article XI as an adjustment to the Purchase Price.
Appears in 1 contract
Samples: Equity Purchase Agreement (Delek US Holdings, Inc.)
Liability for Taxes. (i) Seller Notwithstanding any disclosure contained in the Company Disclosure Schedules, except to the extent taken into account as a liability in calculation of Net Working Capital, the Members shall be severally, and not jointly, liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member the Parent Indemnified Persons from and against against, any and all Losses and Expenses incurred Pre-Closing Taxes (it being understood that the sole source of recovery from the Members by such Buyer Group Member in connection with or arising from (A) Parent Indemnified Persons for Pre-Closing Taxes imposed on shall be the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable Escrow Amount held pursuant to Treasury Regulation § 1.1502the Escrow Agreement). If any Pre-6 Closing Tax is indemnified under an agreement or similar provisions insurance policy described in the definition of statePre-Closing Fleetwood Tax Amounts, local or foreign law as a result of having been a member of a Company Group the Parent Indemnified Persons shall first pursue that remedy and any Taxes resulting shall be entitled to receive indemnification from the ceasing Escrow Account to the extent that remedy proves insufficient, provided, however, that in the event the Parent Indemnified Persons pursue such remedy but do not recover such Pre-Closing Tax under such agreement or insurance policy by the Escrow Release Date (as defined in the Escrow Agreement), a portion of the Escrow Amount equal to such Pre-Closing Tax (to the extent available) shall continue to be a member held in the Escrow Account to provide for indemnification in the event such remedy ultimately proves insufficient.
(ii) In the case of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or Tax period that ends begins on or before the Closing Date and the portion of any Straddle Period ending on and including ends after the Closing Date (a “Straddle Period”), (i) the “amount of any Taxes of the Company or its Subsidiaries based upon or measured by receipts, profits, wages, capital, net worth, net income or gain for the Pre-Closing Tax Period will be determined based on an interim closing of the books as of the close of business on the Closing Date (and, for greater certainty, determined on the assumption that any partnership income for the Pre-Closing Tax Period is allocated to, and included in the taxable income of, the members of the partnership in the Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, basis (such as property Taxes the deductions for depreciation and depreciation deductions, shall real estate taxes) will be apportioned between such two taxable years or periods on a daily basis.
basis and (iiiii) Seller shall be entitled to the amount of any refund or credit of other Taxes of the Company (including any interest relating thereto) with respect or its Subsidiaries for the Pre-Closing Tax Period will be determined by multiplying the amount of such Taxes for the entire period by a fraction, the numerator of which is the number of days in the period ending on the Closing Date and the denominator of which is the number of days in the entire period. Notwithstanding the foregoing, items attributable to actions not in the ordinary course of business and not contemplated by this Agreement taken by Parent, the Company or its Subsidiaries on the Closing Date and after the Closing will not be attributable to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Period.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (ia) Seller EMI shall be liable for, and shall indemnify, defend and hold harmless the Partnership from any unpaid Taxes imposed on or incurred by or with respect to the Companies or either of them or the Company Assets with respect to any taxable period or portion thereof ending on or prior to the Closing Date to the extent such unpaid Taxes exceed any reserves therefor.
(b) The Partnership shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on or incurred by or with respect to the Companies or either of them or the Company Assets with respect to any taxable period or portion thereof beginning after the Closing Date.
(c) Whenever it is necessary for which purposes of this Article V to determine the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member amount of any Company Group) and (B) Taxes imposed on or incurred by or with respect to the Companies or either of them or the Company or Assets for which the Company may otherwise be liable for any a taxable year or period that ends on or beginning before and ending after the Closing Date and which is allocable to the portion of any Straddle Period period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, or prior to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, providedthe determination shall be made, howeverin the case of property or ad valorem taxes or franchise taxes (which are measured by, or based solely upon capital, debt or a combination of capital and debt), by pro rating such Taxes ratably on a per diem basis and, in the case of other Taxes, by assuming that such taxable period ending on or prior to the Closing Date constitutes a separate taxable period applicable to the Companies and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances, allowances and deductions or Taxes for a taxable period beginning before and ending after the Closing Date that are calculated on an annual or periodic basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods to the period prior to and including the Closing Date ratably on a daily per diem basis). Notwithstanding anything to the contrary herein, any franchise tax paid or payable with respect to the Companies or either of them or the Company Assets shall be allocated to the taxable period during which the income, operations, assets or capital comprising the base of such tax is measured, regardless of whether the right to do business for another taxable period is obtained by the payment of such franchise tax.
(iiid) Seller shall be entitled to If either Company or the amount Partnership receives a refund of any refund Taxes that EMI is responsible for hereunder, or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer if EMI or its Affiliates (including the Company) after the Closing, net receive a refund of any cost to Buyer and its Affiliates attributable to Taxes that the obtaining and Partnership is responsible for hereunder, the party receiving such refund shall, within ninety (90) days after receipt of such refund or creditrefund, except remit it to the extent party who has responsibility for such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet Taxes hereunder. The parties shall cooperate in order to take all necessary and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause reasonable steps to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, claim any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)refund.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Contribution and Transfer Agreement (EnLink Midstream Partners, LP)
Liability for Taxes. (ia) All transfer, documentary, sales, use, stamp, registration and other similar Taxes and fees (including any penalties and interest) incurred in connection with this Agreement on the transfer of Shares (including, if applicable, any transfer tax imposed in any state or subdivision) ("Transaction Taxes"), shall be paid by apportioned between and paid equally by the Buyer and the Seller when due, and the Party responsible for making any required filing under applicable law will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Transaction Taxes and, if required by applicable law, the other Party will join in the execution of any such Tax Returns and other documentation.
(b) The Seller shall be liable for and payindemnify the Buyer or the Company, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and as the case may be, for all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company Company, or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable liabilities pursuant to Treasury Regulation § Section 1.1502-6 6(a) or any similar provisions provision of any state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable law), for any taxable year or period of the Company that ends on or before the Closing Date (such periods referred to as "Pre-Closing Tax Periods" and Taxes for such periods referred to as "Pre-Closing Taxes"), and, with respect to any portion of a taxable year or period beginning before and ending after the Closing Date (such periods referred to as "Straddle Periods" and Taxes for such periods referred to as "Straddle Taxes"), for Taxes attributable to the portion of any such Straddle Period ending on and including the Closing Date; provided, however, that Seller shall have no obligation to make any payment pursuant to this Section 9.1, until the amounts that would otherwise be payable pursuant to this Section 9.1 (apart from this proviso) exceed the reserve for Taxes on the Financial Statements, and provided further that any payment pursuant to this Section 9.1 shall be net of tax benefits available to the party to whom such payment is made.
(c) Buyer shall be liable for, and Buyer shall indemnify Seller and its affiliates for, all Taxes imposed on Seller or any of its affiliates with respect to the Company for any taxable year or period that begins after the Closing Date (the “Presuch periods referred to as "Post-Closing Tax Periods" and such taxes referred to as "Post-Closing Taxes") and, with respect to Taxes for a Straddle Period”), except, in each case, to the extent portion of Taxes for such Taxes were included on Straddle Period beginning after the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(iid) For purposes of paragraph (a)(i)this Section 9.1, whenever it is necessary to determine the liability for Taxes income taxes of the Company for a portion of a Straddle Period, the determination of the Taxes of the Company income taxes for the portion of the Straddle Period ending on on, and including the portion of the Straddle Period beginning after, the Closing Date Date, shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from had a taxable year or period that begins after ended on the Closing Date. To the extent permitted by applicable law, the Parties agree to elect to treat the Closing Date as the last day of the taxable year. In the case of any Taxes that are imposed on a periodic basis and is attributable are payable for a taxable period that includes (but does not end on) the Closing Date, the portion of such Tax that relates to the Company andPre- Closing Tax Period shall (i) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in Pre-Closing Tax Period and the denominator of which is the number of days in the entire taxable period, and (ii) in the case of any Tax based upon or related to income or receipts, be deemed equal to the extent amount that would be payable if the relevant taxable period ended on the Closing Date. All determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practice of the Company.
(e) Seller shall be responsible for and shall pay any income, franchise or similar Taxes arising as a result of any Code Section 338(h)(10) election or any comparable or resulting election under state law filed by Buyer or Seller.
(f) Any Tax refunds that are received by the Company or Buyer and any amounts credited against Taxes to which Buyer or the Company become entitled that relate to Taxes for Pre-Closing Tax Periods shall be for the account of Seller unless such refund is actually received by a result of a carryback of an item that arose in a Post-Closing Tax Period, and Buyer shall pay over to Seller or its Affiliates, any such refund or the amount of any such credit shall be paid by Seller to Buyer within fifteen (15) 15 days of the after receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)entitlement thereto.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI Article VII (and subject to the limitations thereof), shall indemnify and hold harmless Buyer and each of the Company and other Buyer Group Member Indemnitees from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from of the following Taxes (collectively, the “Seller Taxes”): (A) Taxes imposed on the Company or payable by Seller, or for which the Company Seller may otherwise be liable as a result liable, regardless of having been a member of a Company Group (the Tax period to which such Taxes relate, including Taxes incurred or payable by Seller or any of its Affiliates upon the consummation of the Transaction; (B) Taxes imposed on or payable by the Company, or for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law whether as a result transferee or successor (including upon merger, liquidation or otherwise), by contract, Law or otherwise (including all sales Taxes, use Taxes, and withholding Taxes) in each instance with respect to any Pre-Closing Tax Period, or any Pre-Closing Straddle Period as determined in accordance with Section 6.02(d) and; (C) Taxes imposed on or payable by or with respect to the Company by reason of it having been a member of a an Affiliated Group on or prior to the Closing Date, including Taxes payable on income and gain recognized by the Company Group under Treasury Regulation Section 1.1502-13 or any analogous or similar provision of foreign, state or local Law; and (D) Taxes of any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for Affiliated Group of which the Company may otherwise be liable for (or any taxable year predecessor of the Company, whether by merger, liquidation or period that ends otherwise) was a member on or before prior to the Closing Date and by reason of Treasury Regulations Section 1.1502-6(a) or any analogous or similar provision of foreign, state or local Law; provided, however, the portion term “Seller Taxes” shall not include the amount of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, Taxes to the extent such Taxes were are reflected as a liability and included in the calculation of Closing Working Capital as finally determined in accordance with Section 2.03. The amount of Seller Taxes shall include all reasonable out-of-pocket fees and expenses (including reasonable attorneys’ and accountants’ fees) incurred by Buyer, the Company and each other Buyer Indemnitees from or in connection therewith. Seller shall reimburse Buyer for any Seller Taxes paid by Buyer, the Company or any Buyer Indemnitee within five (5) days prior to the earlier of (i) the date on which such Taxes are paid by Buyer, the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
Company or a Buyer Indemnitee, or (ii) For purposes of paragraph (a)(i), whenever it is necessary the date on which Buyer provides written notice to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basisSeller.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase and Redemption Agreement (P&f Industries Inc)
Liability for Taxes. (ia) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify Buyer against, all Tax Liabilities.
(b) Buyer shall be liable for, and hold harmless each Buyer Group Member from and against any and shall indemnify Seller against, all Losses and Expenses incurred by such Buyer Group Member in connection with Taxes arising or arising resulting from (Ai) Taxes imposed on the Company conduct of the Business or the ownership of the Purchased Assets for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 taxable periods or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before portions thereof beginning after the Closing Date and or (ii) any transaction relating to the portion Business or the Purchased Assets that Buyer or any of any Straddle Period ending its Affiliates causes to occur on and including or after the Closing Date (excluding the “Pre-Closing Tax Period”sale of the Business and the Purchased Assets pursuant to this Agreement and excluding Seller’s liability under Section 3.9), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(iic) For purposes of paragraph (a)(i)Section 9.1(a) and Section 9.1(b) above, whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, such Taxes shall be apportioned between Seller and Buyer (A) in the determination case of the Taxes of the Company for the portion of the Straddle Period ending other than income, sales and use and withholding taxes, on and including a per diem basis (except with respect to real property taxes, which shall be apportioned on the Closing Date shall be based on the most recent year’s tax xxxx) and (B) in the case of income, sales and use and withholding taxes, as determined by assuming that as though the Straddle Period consisted of two taxable years or periods, one which ended at the close of on the Closing Date and the other which began at the beginning of the day following the Closing Date and items Date.
(d) Buyer shall pay to Seller the amounts received by Buyer or any of incomeits Affiliates of any refund, gain, deduction, loss abatement or credit of (A) Taxes which are attributable to the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing conduct of the books basis” by assuming that Business or the books ownership of the Company were closed at the close of Purchased Assets on or prior to the Closing DateDate and (B) any other Tax Assets. In the case of any Straddle Period, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, Buyer shall be apportioned between such two taxable years or periods on a daily basis.
(iii) pay to Seller shall be entitled to the amount received by Buyer or any of its Affiliates of any refund refund, abatement or credit of Taxes of that would have been made had the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Taxable Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included ended on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Date.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (ia) Seller The Members shall on a pro rata basis be liable for and pay, and pursuant to ARTICLE Article XI shall agree to indemnify and hold harmless each Buyer Group Member from of Fjord and against any its subsidiaries (and Xxxxx and each Xxxxx Subsidiary) against: (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company any Member by reason of ownership of Membership Interests in Xxxxx for all taxable years or periods or portions thereof; (ii) all Taxes imposed on Xxxxx or any Xxxxx Subsidiary, or for which the Company Xxxxx or any Xxxxx Subsidiary may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), exceptDate, in each case, case to the extent such exceeding the liability for Taxes were included appearing on the Closing Date Balance Sheet Sheet; and taken into account (iii) any Transaction Tax; provided, however, that the limitations contained in determining Section 11.1(a) shall apply to the Adjusted Purchase PriceMembers' obligations under this Section 10.1(a).
(iib) For purposes of paragraph (a)(i)Section 4.7 and Section 10.1, whenever it is necessary to determine the liability for Taxes of the Company Xxxxx or any Xxxxx Subsidiary for a Straddle Period, the determination of the Taxes of the Company Xxxxx or such Xxxxx Subsidiary for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company Xxxxx or such Xxxxx Subsidiary for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company Xxxxx or Xxxxx Subsidiary were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
. The parties agree to elect to close the books of Xxxxx and the Xxxxx Subsidiaries (iiithat are limited liability companies) Seller shall be entitled to under the amount of any refund or credit of Code on the Closing Date. The parties acknowledge and agree that the liability for Taxes of the Company (including Xxxxx or any interest relating thereto) with respect to a PreXxxxx Subsidiary for any pre-Closing Tax Date Straddle Period to may not be determined and may not have been entered on the extent such Taxes were paid by books of the Company prior to entity as of the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) Date, and that such entries will be made as soon as practicable after the Closing, net consistent with past accounting practices of any cost to Buyer Xxxxx and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Xxxxx Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including All Taxes for which periods after the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions date of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending that should be reserved on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at Seller and the close Seller's past practice have been so reserved, and all estimated tax payments required to be made have been made. The Seller has withheld and paid over all Taxes required to have been withheld and paid over, and complied with all information reporting and backup withholding requirements, including maintenance of the Closing Daterequired records with respect thereto, providedin connection with amounts paid or owing to any employee, howevercreditor, that exemptionsindependent contractor, allowancesor other third party. Except as set forth in Seller's Disclosure Schedule, deductions there have been no audits or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled examinations by any taxing authority relating to the amount of any refund or credit of Taxes of the Company Seller during the past six years, no taxing authority has given notice that it will commence any such audit or examination and no taxing authority is asserting (including either orally or in writing, formally or informally) or, to the knowledge of the Seller, threatening to assert any interest deficiency or claim relating thereto) to Taxes of the Seller, and no liens for Taxes have been filed and are currently outstanding with respect to a Pre-Closing Tax Period to any of the extent such Taxes were paid by assets or properties of the Company prior to Seller. There is no agreement or waiver currently in effect extending the Closing period for assessment or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net collection of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceTaxes. Buyer shall pay, or cause to be paid, to Seller any amount to which The Seller is entitled pursuant not, nor has it ever been, a party to a tax sharing, tax indemnity or tax allocation agreement, and the prior sentence within fifteen (15) days Seller has not assumed the tax liability of the receipt any other person under contract. The Seller is not, nor has it ever been, a member of an affiliated group filing a consolidated federal income tax Return. As used herein, "Return" or recognition "Returns" shall mean all returns, declarations of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller------ ------- estimated tax payments, Buyer will reasonably cooperate with Seller in obtaining such refund or creditreports, estimates, information returns and statements, including through the filing of amended Tax Returns for periods ending before any related or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit supporting information with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall foregoing, filed or to be entitled to filed with the United States or any refund state, governmental authority or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund subdivision or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller agency thereof in connection with the determination, assessment, collection or arising from administration of any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementTaxes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Xoom Inc)
Liability for Taxes. (i) Seller SymmetriCom shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (A) Taxes imposed on the Company or any corporation (other than the Company) that joins with SymmetriCom in filing a combined or consolidated tax return (the "Company Tax Group") for any taxable year, or (B) imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date (including Income Taxes attributable to the Section 338(h) (10) Election) (a "Pre-Closing Period") and, with respect to any period beginning prior to the Closing Date and which does not terminate on the Closing Date (a "Straddle Period"), the portion of any such Straddle Period ending on and including the Closing Date Date; provided, however, that SymmetriCom shall not be liable for and shall not indemnify Purchaser for any (the “Pre-Closing Tax Period”), except, in each case, i) Taxes (other than Taxes attributable to the extent such Taxes were included Section 338(h) (10) Election) imposed on the Company as a result of transactions (other than transactions in the ordinary course of business) occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing or (ii) any Taxes (other than income, franchise or similar Taxes) reflected on the Current Balance Sheet or incurred in the ordinary course of business since the Current Balance Sheet ((i) and taken into account in determining the Adjusted Purchase Price(ii) being referred to as "Excluded Taxes"). SymmetriCom shall be entitled to any refund of Taxes for which it is liable pursuant to this paragraph (a) (i).
(ii) Purchaser shall be liable for (A) all Taxes imposed on the Company, or for which the Company may otherwise be liable, for any taxable year or period that begins after the Closing Date (a "Post-Closing Period") and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date and (B) any Excluded Taxes. Purchaser shall be entitled to any refund of Taxes for which it is liable pursuant to this paragraph (a)(ii).
(iii) For purposes of paragraph paragraphs (a)(i)) and (a)(ii) of this Section 6.09, whenever it is necessary to determine the liability for Taxes of the Company SymmetriCom for a portion of any Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “"closing of the books basis” " by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that (I) Taxes imposed on the Company as a result of transactions (other than transactions in the ordinary course of business) occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date and (II) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
. For purposes of paragraphs (iiia)(i) Seller shall be entitled and (a)(ii) of this Section 6.09, whenever it is necessary to determine the amount of any refund liability for Taxes (other than Excluded Taxes) attributable to real or credit of personal property Taxes of the Company (including for a portion of any interest relating thereto) with respect to Straddle Period, the total amount of such Taxes for the period in question shall be multiplied by a fraction, the numerator of which is the number of days of the Straddle Period that are in the Pre-Closing Tax Period to and the extent such denominator of which is the total number of days in the Straddle Period; provided, however, that any amount of Straddle Period Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining increase in the assessed value of real or personal property as a result of the transactions contemplated by this Agreement shall be borne by Purchaser.
(iv) For purposes of paragraphs (a) (i) and receipt (a) (ii) of such refund or creditthis Section 6.09 whenever it is necessary to allocate an item of income, except to the extent such refund gain, deduction, loss or credit arises as the result of to either a carryback of a loss taxable year or other tax benefit from a Tax period (that ends on or portion thereof) beginning after before the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date, rules consistent with those in Treas. Reg. (S) 1.1502-76(b) shall be applied.
(v) If, as a result of any action, suit, investigation, audit, claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction or credit that results in an increase in an Income Tax liability for which SymmetriCom would otherwise be liable pursuant to paragraph (a) (i) of this Section 6.09, and is attributable such change results in a decrease in the Income Tax liability of the Company, Purchaser, or any Affiliate or successor thereof for any taxable year or period beginning after the Closing Date or for the portion of any Straddle Period beginning after the Closing Date, SymmetriCom shall not be liable pursuant to the Company and, such paragraph (a) (i) with respect to such increase to the extent of such refund decrease. If, as a result of any action, suit, investigation, audit, claim, assessment or amended Income Tax Return, there is actually received by Seller or its Affiliatesany change after the Closing Date in an item of income, any such refund gain, loss, deduction or credit shall that results in an increase in an Income Tax liability for which Purchaser would otherwise be paid by Seller liable pursuant to Buyer within fifteen paragraph (15a) days (ii) of this Section 6.09, and such change results in a decrease in the receipt Income Tax liability of such refund by Seller. Buyer shall be entitled to SymmetriCom or any refund Affiliate or credit included successor thereof (other than the Company) for any taxable year or period ending on or before the Closing Date or for the portion of any Straddle Period ending on the Closing Date Balance Sheet and taken into account in determining (other than by reason of a carryback of losses or deductions), Purchaser shall not be liable pursuant to such paragraph (a) (ii) with respect to such increase to the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which extent of such Party is entitled under this subparagraph (iii)decrease.
(ivvi) Buyer Purchaser shall be liable for and paypay all Transfer Taxes. For purposes of this Agreement, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and "Transfer Taxes" means all Losses incurred by Seller in connection with or arising from any stamp, recordation, sales, use, real property transfer Taxor gains or similar transfer Taxes attributable to the actual or deemed transfer of property or stock from SymmetriCom or the Company to Purchaser or the Company, sales Tax, use Tax, stamp Tax, stock transfer Tax, together with any penalties or other similar Tax imposed on the transactions contemplated by this Agreementinterest with respect to such taxes.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Microsemi Corp)
Liability for Taxes. (i) Seller Pursuant to Article XII, and solely from the Indemnity Escrow Fund, each Parent Group Member shall be liable for indemnified and pay, and pursuant to ARTICLE XI shall indemnify and hold held harmless each Buyer Group Member from and against against, any and all Losses and Expenses suffered, incurred or sustained by any such Buyer Parent Group Member relating to, in connection with or arising from (Ai) all Taxes imposed on the Company Company, or for which the Company may otherwise be liable liable, as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation Treas. Reg. § 1.1502-6 or similar provisions of state, local or foreign law Law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and at or prior to the Effective Time, (Bii) all Transfer Taxes imposed on the Company Participants, and (iii) all Taxes imposed on the Company, or for which the Company may otherwise be liable liable, for any taxable year or period that ends on at or before the Closing Date and Effective Time and, with respect to any Straddle Period, the portion of any such Straddle Period ending on at and including the Closing Date Effective Time (including any obligations to contribute to the “Pre-Closing payment of a Tax Period”determined on a consolidated, combined or unitary basis with respect to any Company Group); provided, excepthowever, in each case, that no Parent Group Member shall be indemnified or held harmless from or against any such Tax liability to the extent such Taxes were included on that it is reflected as a liability or reserve for Tax liabilities in the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) Sheet. For purposes of paragraph (a)(ithis Section 9.1(a), whenever it is necessary to determine the liability for income or sales Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the Closing Date portion of the Straddle Period beginning after, the Effective Time shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date Effective Time and the other which began at the beginning of the day following the Closing Date Effective Time and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close Effective Time and the amount of any other Taxes of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, Company shall be apportioned allocated between such two taxable years or periods on based upon a daily basis.
(iii) Seller shall be entitled fraction, the numerator of which is the number of days in the portion of the year being determined and denominator of which is the number of days in the year. In the event that Parent makes an election under Section 338 of the Code with respect to the amount of any refund or credit of Taxes acquisition of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to hereunder, then the extent such Taxes were paid deemed sale by the Company prior of its assets pursuant to the Closing or by a Seller such election shall be treated for purposes of this Section 9.1(a) as having taken place after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceEffective Time. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI Parent shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising the Participants from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar additional Tax imposed on recognized by such Participants solely as a result of such election under Section 338 of the transactions contemplated by this AgreementCode.
Appears in 1 contract
Liability for Taxes. (i) Seller The Sellers shall be liable for and pay, and pursuant agree to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against against, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on with respect to the Company or for which and the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable Assumed Liabilities for any taxable year or period that ends on or before the Closing Date and and, with respect to any taxable period that includes (but does not end on) the Closing Date (a ‘‘Straddle Period’’), with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company date immediately prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer The Sellers shall be entitled to any refund of (or credit with respect to for) Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and for which it is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled liable under this subparagraph (iii)Agreement.
(ivii) Buyer shall be liable for and pay, and pursuant agrees to ARTICLE XI shall indemnify and hold harmless Seller the Sellers from and against against, any and all Losses incurred Taxes imposed with respect to the Company and the Assumed Liabilities for any taxable year or period that begins on or after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning on and including the Closing Date. Buyer shall be entitled to any refund of (or credit for) Taxes for which it is liable under this Agreement.
(iii) For purposes of Sections 8.4(b)(i) and (ii), any Straddle Period shall be treated on a “closing of the books” basis as two partial periods, one ending immediately prior to the Closing Date and the other beginning on the Closing Date; provided, however, that Taxes imposed on a periodic basis shall be allocated pro rata on a daily basis. Notwithstanding the preceding sentence, if the transactions contemplated by Seller this Agreement result in the reassessment of the value of any of the Assets for property Tax purposes, or the imposition of any property Taxes on such Assets at a rate that is different than the rate that would have been imposed if such transactions had not occurred, then (y) the portion of such property Taxes for the portion of such Straddle Period ending immediately prior to the Closing Date shall be allocated pro rata on a daily basis, using the assessed value and Tax rate that would have applied had such transactions not occurred, and (z) the portion of such property Taxes for the portion of such Straddle Period beginning on the Closing Date shall be the total property Taxes for such Straddle Period minus the amount described in clause (y).
(iv) Notwithstanding anything herein to the contrary, except for sales Taxes in connection with or arising the purchase of the fixed assets, which Buyer agrees to pay, Sellers agree to pay, and agrees to indemnify and hold harmless the Buyer from and against, any and all real property transfer Taxor gains Taxes, sales TaxTaxes, use TaxTaxes, stamp Tax, stock transfer Tax, Taxes or other similar Tax Taxes imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement
Liability for Taxes. (i) Seller shall be liable for Each Key Securityholder jointly and pay, and pursuant severally agrees to ARTICLE XI shall indemnify and hold harmless pursuant to Article VIII each Buyer Parent Group Member from and against any and all Losses and Expenses Expense incurred by such Buyer Parent Group Member in connection with or arising from (A) all Taxes imposed on the Company or the Subsidiary or for which either the Company or the Subsidiary may otherwise be liable liable, as a result of having been a member of a Company Group (including Taxes for which the Company or the Subsidiary may be liable pursuant to Treasury Regulation Treas. Reg. § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the Company or the Subsidiary ceasing to be a member of any Company Group) ), and (B) all Taxes imposed on the Company or the Subsidiary, or for which the Company or the Subsidiary may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on up to and including the Closing Date (the “Pre-Closing Tax Period”)Date; provided, excepthowever, in each case, to the extent such Taxes were included that any extraordinary transaction occurring on the Closing Date Balance Sheet after the Closing at the direction of Parent shall be treated by the Company, the Securityholders and taken into account in determining Parent for all federal income tax purposes as occurring at the Adjusted Purchase Price.
(ii) For purposes beginning of paragraph (a)(i), whenever the day following the Closing Date. Whenever it is necessary to determine the liability for Taxes of the Company or the Subsidiary for a Straddle Period, the determination of the Taxes of the Company or the Subsidiary for the portion of the Straddle Period ending on up to and including the Closing Date, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as the deduction for depreciation and personal property, real property Taxes and depreciation deductionsother similar Taxes, shall be apportioned between such two taxable years or periods on a daily basis. Notwithstanding the foregoing and for the avoidance of doubt, any Excluded Taxes shall not be indemnified by any Securityholder.
(iiii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer Each Key Securityholder shall be liable for and pay, and pursuant to ARTICLE XI Article VIII shall indemnify and hold harmless Seller each Parent Group Member from and against any and all Losses and Expenses incurred by Seller such Parent Group Member in connection with or arising from any real property transfer gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
(ii) Except as provided for in clause (B) below and except to the extent shown as an asset (or liability reduction) on the Closing Date Net Working Capital Statement, if Parent, the Surviving Corporation or any Parent Group Member receives a credit with respect to, or refund of, any Tax for which any Key Securityholder is liable under this Agreement, Parent shall pay over to the Securityholder Representative for distribution to the Securityholders the amount of such refund or credit within fifteen (15) days after receipt. In the event that any refund or credit of Taxes for which a payment has been made to the Securityholder Representative by Parent is subsequently reduced or disallowed, the Securityholder Representative shall indemnify and hold harmless Parent (in accordance with the provisions of Section 7.2(c)) for any Tax by reason of the reduction or disallowance in an amount not to exceed the amount actually paid by Parent to the Securityholder Representative.
(A) If Parent, the Company or the Subsidiary becomes entitled to a refund or credit of Taxes for which any Securityholder is liable under paragraph (a) to indemnify Parent, the Company or the Subsidiary, and such refund or credit is attributable to the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company or the Subsidiary, then except as provided in Section 7.6, any Securityholder shall not be entitled to the amount of such refund or credit, nor shall such Securityholder be obligated under the preceding sentence to pay Parent the amount of such refund or credit.
(B) For purposes of this Section 7.2, Tax refunds shall include any interest that is paid as part of the payment of such refunds, reduced by the increase in the original payee’s federal, state, local, foreign or other Taxes payable attributable to such interest after taking into account any offsetting deductions or credits.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Navigant Consulting Inc)
Liability for Taxes. (ia) The Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold the Purchaser and its Affiliates harmless each Buyer Group Member from and against from, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and incurred by any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) Target Companies with respect to a Pre-Closing Period, together with any reasonable costs, expenses, losses or damages, including reasonable expenses of investigation and attorneys’ and accountants’ fees and expenses, arising out of or incident to the determination, assessment or collection of such Taxes (“Tax Period Losses”) provided, however, that the Seller’s liability for Tax Losses hereunder shall be reduced by the amount of any Taxes included in such Tax Losses to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and are taken into account in determining the Adjusted Purchase Price. Buyer Final Net Working Capital.
(b) The Purchaser shall paybe liable for, and shall indemnify and hold the Seller and its Affiliates harmless from, any Tax Losses (i) imposed on or incurred by or with respect to the Target Companies or the Target Companies’ Assets with respect to a Post-Closing Period, or cause (ii) attributable to be paid, to Seller a breach by the Purchaser of any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit covenant with respect to Taxes in this Agreement.
(including c) Whenever it is necessary for purposes of this ARTICLE 9 to determine the amount of any interest relating thereto) that results from Taxes imposed on or incurred by or with respect to the carryback Target Companies for a portion of losses, credits or similar items from a taxable year or period that begins before and ends after the Closing Date which is allocable to a Pre-Closing Period, the determination shall be made, in the case of property or ad valorem taxes or franchise taxes (which are measured by, or based solely upon capital, debt or a combination of capital and is attributable to the Company debt), on a per diem basis and, to in the extent case of other Taxes, by assuming that such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days portion of the receipt of such refund by Seller. Buyer shall be entitled period that is prior to any refund or credit included on and includes the Closing Date Balance Sheet constitutes a separate taxable period applicable to the Target Companies and taken by taking into account in determining the Adjusted Purchase Priceactual taxable events occurring during such period (except that exemptions, allowances and deductions that are calculated on an annual or periodic basis, such as the deduction for depreciation, shall be apportioned to the Pre-Closing Period ratably on a per diem basis). Buyer and Seller shall take reasonable steps as may be requested Notwithstanding anything to the contrary herein, any franchise tax paid or payable by the other Party Target Companies shall be allocated to obtain any the taxable period during which the income, operations, assets or capital comprising the base of such tax is measured, regardless of whether the right to do business for another taxable period is obtained by the payment of such franchise tax. Any credit or refund or credit resulting from an overpayment of Taxes for a taxable period beginning before and ending after the Closing Date shall be prorated based upon the method employed in this Section 9.1(c) taking into account the type of Tax to which such Party is entitled under this subparagraph (iii)the credit or refund relates. All determinations necessary to effect the foregoing allocations shall be made in a manner consistent with prior practice of the Target Companies.
(ivd) Buyer The Purchaser shall be liable for for, shall pay and payshall indemnify, defend and pursuant to ARTICLE XI shall indemnify save harmless the Seller and hold harmless Seller its Affiliates from and against any all stock transfer, sales, use, documentary, stamp and all Losses other similar Taxes (“Transfer Taxes”) incurred by Seller in connection with or arising from any real property the sale and transfer Taxof the Purchased Shares to the Purchaser. The Purchaser shall file all necessary Tax Returns and other documentation with respect to such Transfer Taxes, sales Taxand the Seller shall cooperate with the Purchaser with respect thereto and, use Taxif required by Applicable Law, stamp Tax, stock transfer Tax, or other similar execute Tax imposed on the transactions contemplated by this AgreementReturns related thereto.
Appears in 1 contract
Liability for Taxes. (ia) Seller The Sellers shall be liable for and pay, and pursuant to ARTICLE XI ------------------- shall indemnify and hold harmless each the Buyer Group Member from and against any and as the case may be, for (i) all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (Aas defined below) Taxes imposed on the Companies or Company Subsidiaries, or for which the Companies or Company Subsidiaries may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateliable, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date ("Pre-Closing Tax Periods") and, with respect to any portion of a taxable year or period beginning before and ending after the Closing Date ("Straddle Period"), the portion of any such Straddle Period ending on and including the Closing Date Date, and (ii) all liabilities imposed on the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included Companies or Company Subsidiaries on or before the Closing Date Balance Sheet under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law) for Taxes of the Sellers or any other corporation which is affiliated with Sellers (other than the Companies and taken into account in determining the Adjusted Purchase PriceCompany Subsidiaries).
(iib) The Buyer shall be liable for, and shall indemnify the Sellers and their Affiliates for, all Taxes imposed on the Sellers or any of their Affiliates with respect to the Companies and Company Subsidiaries for any taxable year or period that begins after the Closing Date and, with respect to a Straddle Period, the portion of such Straddle Period beginning after the Closing Date.
(c) For purposes of paragraph (a)(i)this Section 7.1, whenever it is necessary to determine the liability for Taxes of the Companies and Company Subsidiaries for a portion of a Straddle Period:
(i) real, personal and intangible property Taxes ("property Taxes") for the Pre-Closing Tax Period shall equal to the amount of such property Taxes for the entire Straddle Period multiplied by a fraction, the determination numerator of which is the Taxes number of the Company for the portion of days during the Straddle Period ending on that are in the Pre-Closing Tax Period and including the denominator of which is the number of days in the Straddle Period; and
(ii) all other Taxes for the Pre-Closing Date Tax Period shall be determined by assuming that the Straddle Period consisted of two Companies and Company Subsidiaries had a taxable years year or periods, one which period that ended at the close of the Closing Date and the other which began at the beginning Date.
(d) The Buyer covenants that it will not cause or permit any Company or Company Subsidiary or any Affiliate of the day following Buyer (i) to take any action on the Closing Date and items other than in the ordinary course of incomebusiness, gainincluding but not limited to the distribution of any dividend or the effectuation of any redemption, deduction, loss that could give rise to any Tax liability or credit reduce any Tax attribute of the Company for Sellers or any affiliated group of which the Straddle Period shall be allocated between such two taxable years Sellers are members or periods (ii) to make or change any Tax election, amend any Tax Return or take any Tax position on a “closing any Tax Return, take any action, omit to take any action or enter into any transaction that results in any increased Tax liability or reduction or any Tax attribute of the books basis” by assuming that Sellers or any affiliated group of which the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that Sellers are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount members in respect of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to Period. The Buyer agrees that the extent such Taxes were paid by Sellers or any affiliated group of which the Company prior to the Closing Sellers are members shall have no Tax liability or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net reduction of any cost Tax attribute resulting from any action referred to Buyer in the preceding sentence and its Affiliates attributable agrees to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and the Sellers or any affiliated group of which the Sellers are members against any such Tax and all Losses incurred by Seller any loss, liability, claim, damage, expense or Tax in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreementtherewith.
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Liability for Taxes. (i) Seller shall be liable for for, shall pay (or caused to be paid) and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company Acquired Entities or on Seller with respect to the Business for which (A) any taxable period ending prior to the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateClosing Date and, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) with respect to any taxable period beginning before and ending on or after the Closing Date (a “Straddle Period”), the portion of such Straddle Period ending at the close of the day before the Closing Date, in the manner described in Section 5.17(a)(iii).
(ii) Buyer shall be liable for, shall pay (or cause to be paid) and shall indemnify and hold harmless the Seller Indemnified Parties from and against all Taxes imposed on the Company Acquired Entities or for which on Buyer or any Acquired Entity in respect of the Company may otherwise be liable Business (A) for any taxable year or period that ends beginning on or before after the Closing Date and and, (B) with respect to any Straddle Period, the portion of any such Straddle Period ending beginning on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceDate.
(iiiii) For purposes of paragraph (a)(i)this Section 5.17, whenever to the greatest extent permitted by Law or administrative practice, the parties shall cause the taxable year of each of the Acquired Entities for purposes of any Tax to close on the day before the Closing Date. Whenever it is necessary to determine the liability for Taxes that are payable with respect to a Straddle Period, except as provided in the following sentence, the amount of any such Taxes that is allocable to the portion of such period ending on the day before the Closing Date shall be deemed equal to the amount that would be payable if the taxable year ended on the day before the Closing Date (for clarification purposes, an interim closing of the Company books). In the case of Taxes imposed on a periodic basis (including real and personal property Taxes) for a Straddle Period, Seller shall be liable for the determination product of the amount of such Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between (or, in the case of such two taxable years or periods Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding Tax period) and a “closing fraction, the numerator of which is the books basis” by assuming that the books number of the Company were closed at the close of days up to, but not including, the Closing Date, providedand the denominator of which is the number of days in the entire period, however, that exemptions, allowances, deductions and Buyer shall be liable for the remaining amount of such Taxes. In the case of any franchise Tax or Taxes that are calculated on an annual basisother Tax providing the right to do business, such as Tax shall be allocated to the period during which the income, operations, assets or capital comprising the base of such Tax is measured, regardless of whether the right to do business for another period is obtained by the payment of such Tax. For purposes of any Tax that is payable for a Straddle Period (including real and personal property Taxes), the Buyer shall be responsible for the timely payment of such Taxes and depreciation deductions, Buyer shall be apportioned between notify Seller of the proration of such two taxable years or periods on a daily basis.
(iii) Taxes as set forth herein. Seller shall be entitled pay to the amount Buyer its share of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company at least two (2) days prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(adue date for such Taxes (or, if later, within five (5) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and days following receipt of such refund or credit, except to the extent such refund or credit arises as the result notice of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iiibilling).
(iv) Notwithstanding anything in this Agreement to the contrary, each of Seller and Buyer shall be liable for for, shall pay (or cause to be paid) and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller the other from and against one-half (1/2) of any Transfer Taxes. Buyer shall prepare and timely file (or cause to be prepared and timely filed) when due all Losses incurred by Tax Returns required to be filed in respect of Transfer Taxes and shall remit (or cause to be remitted) to the applicable taxing authorities the Transfer Taxes shown to be due in respect of such Tax Returns, and shall provide Seller proof of such payment. Seller shall reasonably cooperate with Buyer in connection with or arising from the preparation and filing of any real property transfer Taxsuch Tax Returns.
(v) The obligations of Seller to indemnify and hold harmless Buyer, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by one hand, and the obligations of Buyer to indemnify and hold harmless the Seller Indemnified Parties, on the other hand, pursuant to this AgreementSection 5.17(a) shall terminate sixty (60) days after the expiration of the applicable statute of limitations; provided, however, that if there is no applicable statute of limitations, such obligations shall terminate on the third anniversary of the Closing Date.
(vi) Whenever Seller shall be required to pay to Buyer or Buyer shall be required to pay to any Seller Indemnified Party an amount pursuant to this Section 5.17(a), such payments shall be made on the later of ten (10) Business Days after such payments are requested or two Business Days before the requesting party is required to pay the related Tax liability.
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Liability for Taxes. (i) Seller Sellers shall be liable for hold harmless, indemnify and paydefend each of the Buyer Indemnitees from and against, and pursuant shall compensate and reimburse each of the Buyer Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of the Buyer Indemnitees or to ARTICLE XI shall indemnify which any of the Buyer Indemnitees may otherwise directly or indirectly become subject at any time (regardless of whether or not such Damages relate to any third party claim) and hold harmless each Buyer Group Member that arise directly or indirectly from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from as a result of, or are directly or indirectly connected with: (A) Taxes imposed on the Company Company, or for which the Company may otherwise be liable, for any taxable year or period ending on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (B) Taxes for which the Company is held liable pursuant to Treasury Regulations Section 1.1502-6 (or any corresponding provision of state or local law) as a result of having been a member of a Company Group group of entities filing Tax Returns on a combined, consolidated, unitary or similar basis on or prior to the Closing Date, (including C) the breach of Sellers’ obligations pursuant to this Section 5.01 and (D) Taxes for which the Company may be Sellers are liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), exceptSection 7.02, in each case, case except to the extent such Taxes were included on the Closing Date Balance Sheet and specifically taken into account in determining the Adjusted Purchase Pricedetermination of the final Closing Date Working Capital, Indebtedness or Transaction Expenses.
(ii) For purposes of paragraph (a)(i)this Agreement, whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as ad valorem and other similar Taxes imposed on property (“Property Taxes”), franchise Taxes based solely on capital, and depreciation deductions, shall be apportioned between such two (2) taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to . In determining whether a Pre-Closing Property Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period ending on or before the Closing Date or a Straddle Period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay), or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Property Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from deemed a taxable year or period that begins after the Closing Date and is Property Tax attributable to the Company andtaxable period specified on the relevant Property Tax bill. For the avoidance of doubt, the limitations on indemnification set forth in Section 6.03 shall not apply to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled indemnification obligations under this subparagraph (iiiSection 5.01(a).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Riot Blockchain, Inc.)
Liability for Taxes. (i) Seller Pursuant to Article VIII, the Sellers shall indemnify and hold harmless the Buyer from and against each of the following: (A) all Taxes assessed against any of the Companies attributable to a Pre-Closing Period or (B) any liability of any of the Companies for Taxes for any Pre-Closing Period; provided, however, that none of the Companies shall be liable for (x) any Taxes imposed on any of the Companies as a result of transactions occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing; (y) the negligence, delay or bad faith of Buyer or its Affiliates; or (z) Buyer’s late filing of any Tax Return or late payment of any Taxes. If any Taxes or liability contemplated in clause (A) and/or (B) above or any adjustment in any Tax Return, is assessed or determined against any of the Companies and payis attributable to a Pre-Closing Period, and pursuant which Taxes or liability can be set off with accumulated Tax losses so determined or assessed as of the Closing Date, neither Buyer nor the Companies shall be entitled to ARTICLE XI any compensation nor indemnification with respect to such Taxes, liability or adjustment, without regard to its assessment during a Post-Closing Period or its effect on a Post-Closing Period.
(ii) Pursuant to Article VIII, Buyer shall indemnify and hold harmless each Buyer Group Member of the Companies and the Sellers from and against any and all Losses and Expenses incurred by such assessed Taxes applicable to the Buyer Group Member in connection with or arising from the Companies relating to each of the following: (A) Taxes imposed attributable to taxable years or periods beginning immediately after the Closing on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (Closing Date, and including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of statespecifically, local or foreign law as a result of having been a member of a Company Group and any assessed Taxes resulting from changes (other than corrections for omissions or erroneous accounting practices) implemented by Buyer or the ceasing Companies following the Closing relating to be a member intercompany payments and transactions between any of any Company Group) the Companies, their respective Subsidiaries, and their respective officers and employees, (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included transactions occurring on the Closing Date Balance Sheet that are properly allocable to the portion of the Closing Date after the Closing, and taken into account in determining (C) resulting from Tax obligations, attributable to the Adjusted Purchase Pricenegligence, delay or bad faith of Buyer or its Affiliates; or (D) resulting from or attributable to Buyer’s late filing of any Tax Return or late payment of any Taxes.
(iiiii) For purposes of paragraph (a)(iSection 6.1(a)(i) and Section 6.1(a)(ii), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including period beginning before the Closing Date but ending after the Closing Date, such liability shall be determined by assuming that the Straddle Period year in which the Closing Date falls consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date Date, and items of income, gain, deduction, loss or credit for the year of the Company for the Straddle Period Closing Date shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the relevant books of the Company were closed at the close of the Closing Date, ; provided, however, that (A) transactions occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing shall be allocated to the taxable year or period that is deemed to begin at the beginning of the day following the Closing Date, and (B) exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis and Taxes that are computed on a periodic basis.
, such as property Taxes, shall also be so apportioned on a daily basis. Notwithstanding the foregoing provisions of this paragraph (iii), if the transactions contemplated by this Agreement result in the reassessment of the value of any property owned by any of the Companies, or the Sellers or Affiliates for property Tax purposes, or the imposition of any property Taxes at a rate which is different than the rate that would have been imposed if such transactions had not occurred, then (x) Seller the portion of such property Taxes for the portion of the year ending on and including the Closing Date shall be entitled to determined on a daily basis, using the amount of any refund or credit of Taxes of assessed value and Tax rate that would have applied had such transactions not occurred, and (y) the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt portion of such refund or credit, except to property Taxes for the extent portion of such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) year beginning after the Closing Date shall be the total property Taxes for the year minus the amount described in clause (x) of this sentence. Sales and use Taxes (and their foreign equivalents, including value added taxes) shall be deemed to accrue in accordance with GAAP.
(iv) The Sellers, jointly and severally, on one hand, and Buyer on the other hand, as the case may be, shall provide reimbursement for any Tax paid by one Party which is the responsibility of the other Party in accordance with the terms of this Section 6.1(a). Within a reasonable time prior to the payment of any such Tax, the Party paying such Tax shall give written notice to the other Party of the Tax payable and the amount which is the liability of each Party, although failure to do so will not relieve the other Party of its liability hereunder. Subject to the delivery of prior written notice of the payment of any such Tax, the Party required to provide reimbursement hereunder shall pay such amount on the later to occur of (i) the date payment is made by the Party paying such Tax and (ii) five Business Days after receipt of such prior written notice.
(v) If, as a result of any action, suit, investigation, audit, claim, assessment or such refund or credit was included on amended Tax Return, there is any change after the Closing Date Balance Sheet and taken into account in determining an item of income, gain, loss, deduction, credit or amount of Tax that results in an increase in Tax liability for which any of the Adjusted Purchase Price. Buyer shall payCompanies, or cause to the Sellers or Affiliates would otherwise be paid, to Seller any amount to which Seller is entitled liable pursuant to this Section 6.1(a), and such change results in a decrease in the prior sentence within fifteen (15) days Tax liability of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins beginning after the Closing Date and is attributable to Date, the Company Sellers shall be liable only for the net amount of such increase after taking into account such decrease in accordance with the provisions of this Section 6.1(a) (and, to the extent such refund increase in Tax liability is actually received paid to a taxing authority by Seller the Sellers or its Affiliatesany Affiliate thereof, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled pay the Sellers an amount equal to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iiidecrease).
(ivvi) Buyer Notwithstanding anything to the contrary in this Agreement, nothing in Section 3.8 shall cause any of the Companies, or the Sellers or Affiliates to be liable to Buyer for and payany amounts relating to any Taxes for which any of the Companies, and or the Sellers or Affiliates is not expressly liable pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementSection 6.1.
Appears in 1 contract
Liability for Taxes. (i1) Seller The Selling Stockholder shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and pay all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Taxes (A) imposed on the Company and its Subsidiaries pursuant to Treas. Reg. ss.
1. 1502-6 or any similar provision of foreign, state or local law as a result of the Company and its Subsidiaries having been members of an "affiliated group" (as such term is defined in Section 1504(a) of the Code) that includes the Selling Stockholder or (B) imposed on the Company and its Subsidiaries for any taxable year or period ending on or prior to the Closing Date and, with respect to any taxable year beginning before and ending after the Closing Date (a "Straddle Period"), the portion of such Straddle Period ending on and including the Closing Date; provided, however, that the Selling Stockholder shall not be liable for or pay (I) any Taxes up to the amount of such Taxes that are accrued on the Closing Balance Sheet (as defined in Section 2.2(b) hereof), (II) any Taxes that result from any actual or deemed election under Section 338 of the Code or any similar provisions of any other relevant Tax law relating to the transactions contemplated by this Agreement, or that result from the Purchaser or any of its affiliates engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a sale of assets of the Company and its Subsidiaries for federal, state, local or other Tax purposes and (III) any Taxes imposed on the Company or for which the Company may otherwise be liable and its Subsidiaries as a result of having been a member transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Reg. ss. 1.1502-76(b)(1)(ii)(B)) to periods after the Closing (Taxes described in items (I) through (III) above, "Excluded Taxes"). The Purchaser and the Selling Stockholder agree that, with respect to any transaction described in item (III) of a Company Group (including Taxes for which the preceding sentence, the Company may be liable pursuant and its Subsidiaries and all Persons related to Treasury Regulation § the Company and its Subsidiaries under Section 267(b) of the Code immediately after the Closing shall treat the transaction for all federal income Tax purposes (in accordance with Treas. Reg. ss. 1.1502-6 or similar provisions of state76(b)(1)(ii)(B)), local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (Bto the extent permitted) for other income Tax purposes, as occurring at the beginning of the day immediately following the Closing Date. The Selling Stockholder shall be entitled to any refund of (or credit for) Taxes imposed on the Company or for which the Company may otherwise be liable for allocable to any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, the Selling Stockholder shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall not be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included accrued on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)Sheet.
(iv2) Buyer The Purchaser shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and pay (A) all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax Taxes imposed on the transactions contemplated by this Agreement.Company and its Subsidiaries for any taxable years or periods beginning after the Closing Date and, with respect to any Straddle
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Liability for Taxes. (ia) Each of the Buyer and the Seller shall bear and be liable responsible for and payfifty percent (50%) of any payments of, or reimbursement to Buyer for, any sales Tax, use Tax, real property transfer or gains Tax, asset transfer Tax, documentary stamp Tax or similar Tax, and any recording and filing fees that are or may be imposed by any government or political subdivision thereof, attributable to the sale or transfer of the Transferred Assets pursuant to ARTICLE XI shall indemnify this Agreement (collectively “Transfer Taxes”), notwithstanding the Party upon which such Taxes or fees are actually imposed.
(b) All real property Taxes, personal property Taxes and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection similar ad valorem obligations levied with or arising from respect to the Transferred Assets for a taxable period which includes (Abut does not end on) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date shall be apportioned between the Seller, on one hand, and the Buyer, on the other, based on the number of days of such taxable period included in the portion of any Straddle Period ending on and including such taxable period before the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to ) and the extent number of days of such Taxes were included taxable period on and after the Closing Date Balance Sheet and taken into account in determining (the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i“Post-Closing Tax Period”), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) . The Seller shall be entitled liable for the proportionate amount of such Taxes that is attributable to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent that the liability for such refund or credit arises Taxes was accrued as a current liability in the result calculation of a carryback of a loss or other tax benefit from a Tax period (or portion thereofFinal Net Working Capital) beginning after and the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for the proportionate amount of such Taxes that is attributable to the Post-Closing Tax Period (except to the extent that payment or accrual for such Taxes was accrued as a current asset in the calculation of Final Net Working Capital). The Seller or the Buyer, as the case may be, shall provide reimbursement for any Tax paid by one Party all or a portion of which is the responsibility of the other Party in accordance with the terms of this Section 6.1(b). Upon receipt of any bxxx or payment of any amount with respect to any such Taxes for which it is entitled to reimbursement under this Section 6.1(b), each of the Seller and pay, and pursuant the Buyer shall present a statement to ARTICLE XI the other setting forth the amount of reimbursement to which each is entitled under this Section 6.1(b) together with such supporting evidence as is reasonably necessary to calculate the proration amount. The proration amount shall indemnify and hold harmless Seller from and against any and all Losses incurred be paid by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or the Party owing it to the other similar Tax imposed on the transactions contemplated by this Agreementwithin 10 business days after delivery of such statement.
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Liability for Taxes. (1) Parent shall be jointly and severally liable and indemnify Buyer and ERC and their Affiliates for (i) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against all Taxes of ERC (including Taxes of any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or other Person for which the Company may otherwise be ERC is liable as a result of having been joint and several liability, contractual liability, successor liability, transferee liability, or otherwise and Taxes resulting from the Section 338(h)(10) Election) to the extent not accrued as a member separate liability (not including reserves to reflect timing differences between Tax and book items) on the Effective Date Balance Sheet for a Pre-Effective Date Period and (ii) all Taxes resulting from a breach of a Company Group representation or warranty under Section 4.03(o). For purposes of this provision, (including i) liability for any Taxes determined by reference to income, capital gains, gross income, gross receipts, sales, net profits, windfall profits or similar items or resulting from a transfer of assets incurred during a period beginning before and ending after the Effective Date shall be allocated between the portion of the period that is a Pre-Effective Date Period and the portion that is the Post-Effective Date Period based on the date on which such items accrued; (ii) liability for all other Taxes for a period that begins before and ends after the Effective Date shall be pro-rated between the Pre-Effective Date Period and the Post-Effective Date Period on a per diem basis based on the number of days in the taxable period for which each party is liable for Taxes hereunder; (iii) Taxes of any consolidated, combined or unitary group that includes ERC on or prior to the Company may Effective Date shall be liable pursuant considered to Treasury Regulation § 1.1502be incurred in a Pre-6 Effective Date Period whether such Taxes are incurred, accrued, assessed or similar provisions similarly charged on, before, or after the Effective Date; and (iv) any interest, penalties, additions to tax or additional amounts that relate to Taxes for a Pre-Effective Date Period shall be considered to be incurred in a Pre-Effective Date Period whether such items are incurred, accrued, assessed or similarly charged on, before or after the Effective Date. The indemnification obligations of state, local or foreign law this Section 5.07 with respect to any Tax shall survive until thirty (30) days after the expiration of any applicable statute of limitations period with respect to such Tax.
(2) Any refunds for Taxes of ERC (to the extent not accrued on the Effective Balance Sheet) for a Pre-Effective Date Period (except as a result of having been the carryback of any items of loss, credit, or other Tax attributes incurred in a member Post-Effective Date Period) shall be property of Parent and to the extent ERC or Buyer receives such a Company Group and refund, Buyer shall promptly pay the amount of such refund (plus any interest received from the applicable Governmental Authority, net of any Taxes resulting from the ceasing Buyer or ERC or any of their Affiliates incurs as a result of receiving such interest) to be Parent. If Buyer or ERC must return to a member of Taxing Authority a refund or credit (or any Company Groupportion thereof) and (B) Taxes imposed on the Company or for which the Company may otherwise it has made payment under this Section 5.07(a)(2), Parent shall indemnify Buyer and ERC for such payment made under this Section 5.07(a)(2).
(3) Buyer shall be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company ERC for a Straddle any Post-Effective Date Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to any refund of Taxes of which ERC received with respect to such periods.
(4) In the case of any Tax that any party is required to pay (including, without limitation, any Tax that the indemnified party elects to pay to the Governmental Authority and xxx for a refund) a Governmental Authority and which is subject to indemnification under Section 5.07(a)(1) or 5.07(a)(3), the party indemnifying against the Tax shall pay the other party the amount for which the party indemnifying against the Tax is responsible pursuant to Section 5.07(a)(1) or 5.07(a)(3) above in immediately available funds no later than three (3) days prior to the date such Tax is due to the relevant Governmental Authority.
(5) If Parent (or any of any its Affiliates) becomes entitled to a refund or credit of for its Taxes of the Company (including or otherwise recognizes a reduction in Taxes) for any interest relating thereto) with respect to a Pre-Closing Tax Effective Date Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as (or reduction) is attributable to the result of a carryback of a loss any items of loss, credit, or other tax benefit from Tax attributes of ERC incurred in a Tax period (or portion thereof) beginning after the Closing Post-Effective Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Period, Parent shall promptly pay to Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund (or credit reduction) (together with respect to Taxes (including any interest relating thereto) that results received from the carryback Governmental Authority, net of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller any Taxes Parent or its Affiliates, any Affiliates incurs as a result of receiving such interest). If Parent or its Affiliate must return to a Taxing Authority such refund or credit shall be paid by Seller to Buyer within fifteen (15or other reduction in Taxes) days of the receipt of such refund by Seller. for which Parent has made payment under this Section 5.07(a)(5), Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which indemnify Parent for such Party is entitled payment made under this subparagraph (iiiSection 5.07(a)(5).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
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Samples: Stock Purchase Agreement (Sirva Inc)
Liability for Taxes. (i) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall defend, indemnify and hold harmless each Buyer Group Member from Purchaser and against its Affiliates and, if applicable, their respective directors, officers, agents, employees, successors and assigns (the “Purchaser Indemnified Parties”) against, and reimburse the Purchaser Indemnified Parties for, any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on or with respect to the Company or Business, the Purchased Assets, and the Assumed Liabilities in each case for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any all taxable year or period that ends periods ending on or before the Closing Date and and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date; (B) Excluded Taxes; and (C) any costs and expenses, including reasonable legal fees and expenses, attributable to any item in clauses (A) and (B).
(ii) Purchaser shall be liable for, and shall defend, indemnify and hold harmless Seller and its Affiliates and, if applicable, their respective directors, officers, agents, employees, successors and assigns (the “Seller Indemnified Parties”) against, and reimburse the Seller Indemnified Parties for, any Taxes (other than any Taxes for which the Seller is liable pursuant to this Section 7.16(a)) imposed on or with respect to the Purchased Assets, in each case for all taxable periods beginning after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date.
(iii) For purposes of this Section 7.16, Taxes imposed on or with respect to the Business, the Purchased Assets or the Assumed Liabilities with respect to a Straddle Period shall be allocated between the portion of such Straddle Period ending on and including the Closing Date (and the “Pre-Closing Tax Period”), except, in each case, to the extent portion of such Taxes were included on Straddle Period beginning after the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending based on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “an actual closing of the books basis” by assuming that the books of the Company were closed at relevant entity as of the close end of the Closing Date, ; provided, however, that exemptionsin closing the books, allowances, deductions or Taxes that are calculated on an annual basis, (such as property Taxes and depreciation deductionsTaxes) that are not imposed on income, receipts or otherwise on a transactional basis shall be apportioned between such two taxable years or periods allocated on a daily basis.
(iiiiv) Seller shall be entitled to the amount any refunds (including interest paid therewith) in respect of any refund or credit of Taxes of the Company (including any interest relating thereto) Tax liability with respect to a Pre-Closing Tax Period regard to the extent such Taxes were paid by the Company Purchased Assets, in each case in respect of a taxable period ending on or prior to the Closing Date or by a Seller after the portion of any Straddle Period ending on or prior to the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including Date. Except as provided in the Company) after the Closingpreceding sentence, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer Purchaser shall be entitled to any refund refunds (including interest paid therewith) in respect of any Tax liability with regard to the Business, the Purchased Assets or credit the Assumed Liabilities.
(v) Notwithstanding anything to the contrary in this Agreement, each of Purchaser and Seller shall be responsible for and shall pay 50% of any Transfer Taxes. The party required by Law to file a Tax Return with respect to such Transfer Taxes shall timely prepare and file, with the other party’s cooperation, such Tax Return. Purchaser and Seller each agree to timely sign and deliver (including any interest relating theretoor to cause to be timely signed and delivered) that results such certificates or forms as may be necessary or appropriate to establish an exemption from the carryback of losses, credits (or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent otherwise reduce) such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen Transfer Taxes.
(15vi) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer Purchaser and Seller shall take reasonable steps as may be requested by the other Party to obtain treat any refund or credit to which such Party is entitled indemnification payment under this subparagraph (iii)Section 7.16(a) as adjustments to the Purchase Price for all Tax purposes.
(ivvii) Buyer Purchaser or Seller, as the case may be, shall be liable for and paymake any payment due under this Section 7.16 to any Seller Indemnified Party or Purchaser Indemnified Party, and pursuant as the case may be, within 10 days following delivery of written notice to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with the Purchaser or arising from any real property transfer TaxSeller, sales Taxas the case may be, use Tax, stamp Tax, stock transfer Tax, that payment of such amounts to the appropriate Taxing Authority or other similar Tax imposed applicable third party is or was due by the Seller Indemnified Party or the Purchaser Indemnified Party, as the case may be. In the event that any payment required to be made under this Agreement is made after the date on which such payment is due, interest will accrue on such amount from (but not including) the transactions contemplated by this Agreementdue date of the payment to (and including) the date such payment is actually made at the rate designated from time to time in Section 6621(a)(2) of the Code, compounded on a daily basis.
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Liability for Taxes. (ia) From and after Closing, the Seller shall be liable for and payindemnify, and pursuant to ARTICLE XI shall indemnify defend and hold harmless each the Buyer Group Member from and against any and all Losses and Expenses amounts actually paid by the Buyer or the Company in respect of any Taxes that are imposed on or incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which and attributable to any taxable period beginning after December 31, 2005 and ending prior to the Company may otherwise be liable Closing Date as a result of having been a member of a Company Group (including Taxes for which well as the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateportion, local or foreign law determined as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member described in Clause 9.1(b), of any Company Group) and (B) such Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before beginning (i) after December 31, 2005 but prior to the Closing Date and (ii) ending on or after the Closing Date, which is allocable to the portion of any Straddle Period ending on and including such period occurring prior to the Closing Date (the “Pre-Effective Time Period”).
(b) Whenever it is necessary for purposes of this Agreement to determine the portion of any Taxes of or with respect to the Company for a taxable period beginning prior to and ending after the Closing Tax Date which is allocable to the Pre-Effective Time Period and the period occurring on or after the Closing Date (“Post-Effective Time Period”), except, the determination shall be made by assuming that the Pre-Effective Time Period and the Post-Effective Time Period each constitutes a separate taxable period and by taking into account the actual taxable events occurring during each such period.
(c) Any claim for indemnification under this Clause 9.1 must be made no later than three (3) months following the end of the applicable Hungarian statutory limitation period in each case, respect of the relevant Tax Return to which the claim for indemnification relates (“Tax Indemnity Period”) in accordance with the provisions applicable to a Third Party Claim contained in Clause 7.1.
(d) Notwithstanding anything to the contrary in Clause 9.1(a):
(i) No claim in respect of Taxes shall entitle the Buyer to be indemnified to the extent that it corresponds to a mere change in the time when a Tax should have been paid or such Taxes were included Tax can effectively be deducted or recovered by the Company (except that the Buyer shall be entitled to be indemnified for any resulting interest charges or penalties for late payment) and/or to the extent that such claim arises (or such claim having arisen, is increased) by a failure or omission on the part of the Company to make any election, surrender or disclaimer or to give any notice or consent or do any other thing after the Closing Date Balance Sheet and taken into account in determining including the Adjusted Purchase Pricefiling of any applicable Tax Returns under the provisions of any the Laws relating to Hungarian Taxes.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the The Seller shall not have any liability for any Taxes which result from or arise out of actions taken or omissions by or on behalf of the Company for a Straddle Period, the determination of the Taxes of Buyer or the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) concerning any changes in accounting methods or ARTICLE XI which refund policies and/or the passing of, or credit is actually recognized by Buyer any change in, any the Laws or its Affiliates (including the Company) after the Closing, net administrative practice of any cost to Buyer and its Affiliates attributable to Governmental Authority, in any such case not actually in force at the obtaining and receipt date of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period this Agreement (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account even if retroactive in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or crediteffect), including through any increase in the filing rate of amended Tax Returns for periods ending before Taxes in effect at the date of this Agreement or on the Closing Date or refund claims. To imposition of any Taxes not in effect at the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount date of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Seller shall be liable responsible for and payindemnify Buyer and the Companies against, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of all refunds and credits of, (i) any refund or credit of Taxes of the Company (including any interest relating thereto) Tax with respect to a Company that is attributable to a Pre-Closing Tax Period or to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result that portion of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included Straddle Period that ends on the Closing Date Balance Sheet (including any Tax resulting from any audit or proceeding that closes or concludes following the Closing Date, even where such audit or proceeding was disclosed to Seller in Section 4.8 or on Schedule 4.8), but only to the extent that the aggregate amount of such Taxes exceeds the amounts reflected as a current liability (and, in the case of CCI, the current and taken into account deferred liability) for Taxes in determining the Adjusted Purchase Pricecomputation of Net Working Capital, and (ii) any liability of a Company under Treas. Reg. §1.1502-6 (or any similar provision under state, local or foreign law) for Taxes attributable to any Pre-Closing Tax Period or to that portion of a Straddle Period that ends on the Closing Date. With respect to a Straddle Period, Seller and Buyer shall determine the Tax attributable to the portion of the Straddle Period that ends on the Closing Date by an interim closing of the books of the Company as of the Closing Date, except for ad valorem or property Taxes and franchise Taxes based solely on capital which shall be prorated on a daily basis to the Closing Date. Buyer shall paybe responsible for and indemnify Seller against, or cause and Buyer shall be entitled to be paid, to Seller any amount to which Seller is entitled pursuant all refunds and credits of (such entitlement being subject to the prior sentence within fifteen following sentence), all other Taxes with respect to the Companies. If after the Closing (15i) days of the receipt Buyer or recognition of the applicable a Company receives a refund or utilizes a credit by Buyer of any Tax with respect to a Company that is attributable to a Pre-Closing Tax Period or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing to that portion of amended Tax Returns for periods a Straddle Period ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay (ii) the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit Tax paid with respect to Taxes a Company is less than the amount reflected as a current liability (including and, in the case of CCI, the current and deferred liability) for such Tax in the computation of Net Working Capital, Buyer shall pay to Seller within ten (10) days after such receipt, utilization or reduction an amount equal to such refund, credit or reduction, together with any interest relating thereto) that results from the carryback of losses, credits received or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii)credited thereon.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (ia) Seller Parent/HS shall be liable for and payfor, and pursuant to ARTICLE XI shall indemnify and hold Newco, JVP and JVP’s Affiliates harmless each Buyer Group Member from any Taxes, together with any Liabilities, including reasonable expenses of investigation and against any attorneys’ and all Losses accountants’ fees and Expenses incurred by expenses, arising out of or incident to the determination, assessment or collection of such Buyer Group Member in connection with or arising from Taxes (Acollectively, “Tax Losses”), attributable to (i) Taxes imposed on ownership and operation of the Company or Haynesville Assets for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends periods ending on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in (ii) ownership and operation of the Haynesville Assets for taxable periods beginning before and ending after the Closing Date (each case, a “Straddle Period”) that are allocable to the extent such portion thereof through the Closing Date, and (iii) a breach by the Parent Parties of any representation, warranty or covenant with respect to Taxes were included in this Agreement (including Section 4.5 or the representations made in the certificate delivered on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Pricepursuant to Section 3.2(f)).
(iib) For purposes In the case of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, Taxes shall be apportioned between Parent/HS and Newco. In the determination case of any Tax other than Taxes based upon or related to income, receipts, expenses, or other transactional matters (e.g., ad valorem property Taxes), the Taxes portion of the Company for such Tax attributable to the portion of the Straddle Period ending on and including taxable period through the Closing Date shall be determined deemed to be the amount of such Tax for the entire taxable period multiplied by assuming that a fraction the Straddle Period consisted numerator of two which is the number of days in the taxable years or periods, one which ended at the close period ending as of the Closing Date and the denominator of which is the number of days in the entire taxable period. In the case of any Tax based upon or related to income, receipts, expenses, or other which began at transactional matters, the beginning portion of such Tax attributable to the portion of the day following taxable period through the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two deemed equal to the amount which would be payable if the relevant taxable years or periods on a “closing period ended as of the books basis” by assuming that the books of the Company were closed at the close of business on the Closing Date, ; provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes basis (including depreciation and depreciation amortization deductions, ) shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes portion of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to period ending as of the Closing or by a Seller after Date and the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including portion of the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date in proportion to the number of days in each such period. Upon the receipt by either Party of any xxxx with respect to ad valorem or similar Taxes for a Straddle Period, the receiving Party shall promptly provide such refund xxxx or credit was included on a copy thereof to the Closing Date Balance Sheet and taken into account non-receiving Party. The Parties shall thereafter cooperate with each other in determining their respective portions of any such bills. Any disputes in this regard shall be resolved in accordance with the Adjusted Purchase Priceprocedures set forth in Section 2.2(b). Buyer Newco shall paybe responsible, or cause to be paidas between Newco and Parent/HS, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days for payment of the receipt or recognition total amount of ad valorem property Taxes owed with respect to any Straddle Period. Parent/HS shall pay to Newco the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining portion of any such refund or credit, including through the filing Taxes for which Parent/HS is liable hereunder promptly upon determination of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such portion in the manner contemplated herein.
(c) If any of Newco, JVP, or any of JVP’s Affiliates receives a refund of any Taxes that Parent/HS is responsible for hereunder, or credit to Buyer. Buyer shall be entitled to if any of the Parent Parties, JVP, or any of JVP’s Affiliates receives a refund or credit with respect to of any Taxes (including any interest relating thereto) that results from Newco is responsible for hereunder, the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent Party receiving such refund is actually received by Seller or its Affiliatesshall, any such refund or credit shall be paid by Seller to Buyer within fifteen ninety (1590) days of the after receipt of such refund by Sellerrefund, remit it to the Party who has responsibility for such Taxes hereunder. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet JVP and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and payParent/HS shall, and pursuant shall cause Newco and their Affiliates to, cooperate in order to ARTICLE XI shall indemnify and hold harmless Seller from and against any and take all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions necessary steps contemplated by this Agreementhereunder.
Appears in 1 contract
Samples: Formation and Contribution Agreement (Petrohawk Energy Corp)
Liability for Taxes. (ia) Seller New Diamond and SV shall (and New Diamond shall cause the New Diamond Entities to) be liable for and payresponsible for, pay or cause to be paid, and pursuant to ARTICLE XI shall (and New Diamond shall cause the New Diamond Entities to) indemnify Onyx, its Designated Affiliates and each of its Subsidiaries and Affiliates (including the Retained Entities after the Closing Date) (each a "Buyer Tax Indemnitee") and hold harmless each Buyer Group Member Tax Indemnitee harmless from and against any and all Losses of the following (including reasonable fees and Expenses incurred by such Buyer Group Member expenses in connection with therewith):
(1) any and all Taxes of New Diamond and each New Diamond Entity ((i) other than any Non-Income Taxes attributable to the Retained Business or arising from the Retained Assets and (Aii) limited, in the case of Shared Non-Income Taxes, to the New Diamond Percentage of such Non-Income Taxes);
(2) the New Diamond Percentage of any Shared Non-Income Taxes imposed on any Retained Entity;
(3) any and all United States federal Income Taxes for any taxable period (or portion thereof) that ends on or prior to the Company or Closing Date (such a period, a "Pre-Closing Period") of the Affiliated Group;
(4) any and all state, local and foreign Income Taxes for which all Pre-Closing Periods of each Retained Entity;
(5) any and all liability for Taxes of the Company may otherwise be liable Affiliated Group imposed on the Retained Entities as a result of having been a member the application of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § Section 1.1502-6 (or any similar provisions provision of state, local or foreign law as law);
(6) any and all Non-Income Taxes for Pre-Closing Periods of, imposed upon, or relating or attributable to the New Diamond Business, the New Diamond Assets or the Standalone Drug Business (regardless of whether such Taxes are imposed on any New Diamond Entity or any Retained Entity); and
(7) any and all Taxes for any taxable period (or portion thereof) that begins after the Closing Date (such a result of having been period, a member of a Company Group and "Post-Closing Period") of, imposed upon or relating or attributable to the New Diamond Entities, the New Diamond Business or the New Diamond Assets. If, for any Taxes resulting from the ceasing to be a member state, local or foreign Income Tax purposes, any Taxable period of any Company GroupRetained Entity includes but does not end on the Closing Date (any such period, a "Straddle Period"), Income Taxes, if any, attributable to such Straddle Period shall be allocated to (A) New Diamond and SV for the portion of such Straddle Period up to and including the Closing Date, and (B) Taxes imposed on the Company or Onyx for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any such Straddle Period ending on subsequent to the Closing Date. For purposes of the preceding sentence, Income Taxes for the portion of each Straddle Period up to and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the such Straddle Period ending on and including subsequent to the Closing Date shall be determined by assuming that on the basis of an interim closing of the books as of the close of business on the Closing Date as if such Straddle Period consisted of two taxable years or periods, one which ended at the close of Taxable period ending on the Closing Date and the other which began at the followed by a Taxable period beginning of on the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that and exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller . New Diamond and SV shall be entitled to the amount of any refund of (or credit of or against) Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of that such refund (or credit, except ) relates to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (that is the responsibility of New Diamond or portion thereofSV under this Section 4.1(a) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit to which New Diamond or SV is entitled under Section 4.6. For the avoidance of doubt, New Diamond and SV shall be entitled to any deposits of Income Taxes with the Internal Revenue Service made by New Diamond, SV, any New Diamond Entity or, prior to the Closing, the Company or any Retained Entity.
(b) Each of Onyx and the Company shall (and shall cause each of the Retained Entities to), be responsible for, pay or cause to be paid, and shall (and shall cause each of the Retained Entities to) indemnify New Diamond and its Subsidiaries and Affiliates (other than the Retained Entities) (each a "Seller Tax Indemnitee") and hold each Seller Tax Indemnitee harmless from and against any and all of the following (including reasonable fees and expenses in connection therewith):
(1) any and all Non-Income Taxes of each Retained Entity ((i) other than any Non-Income Taxes attributable to the New Diamond Business, the New Diamond Assets or the Standalone Drug Business and (ii) limited, in the case of Shared Non-Income Taxes, to the Company Percentage of such Non-Income Taxes);
(2) the Company Percentage of any Shared Non-Income Taxes imposed on New Diamond or a New Diamond Entity;
(3) any and all Non-Income Taxes for Pre-Closing Periods of, imposed upon, or relating or attributable to the Retained Business or the Retained Assets (regardless of whether such Non-Income Taxes are imposed on any Retained Entity or New Diamond or any New Diamond Entity);
(4) any and all Taxes for any Post-Closing Period of, imposed upon, or relating or attributable to the Retained Entities, the Retained Business or the Retained Assets and any and all Taxes of Onyx (or any Affiliate of Onyx that purchases a Retained Entity or Retained Asset pursuant hereto); and
(5) notwithstanding Section 4.1(a), any Taxes resulting from any extraordinary transaction taken by or with respect to Taxes (including any interest relating thereto) that results from the carryback of lossesRetained Entities, credits the Retained Business or similar items from a taxable year or period that begins after the Retained Assets on the Closing Date but after the Retained Business Purchase and is attributable any and all Taxes resulting from any Onyx Real Estate Dropdowns (or of any wholly-owned subsidiary referred to in the definition thereof), the Financing or any Future Debt Financing (and New Diamond and SV shall not be responsible for such Taxes described in this clause (5)). Each of Onyx, its Designated Affiliates and the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund of (or credit included on of or against) Taxes to the Closing Date Balance Sheet and taken into account in determining extent that such refund (or credit) relates to a Tax that is the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as responsibility of Onyx, its Designated Affiliates, any Retained Entity or the Company under this Section 4.1(b), except for refunds (or credits) to which New Diamond may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iiiSection 4.1(a).
(ivc) Buyer shall be liable for The parties acknowledge and payagree that they desire and intend to treat (x) the Retained Business Purchase (other than the purchase of Lucky Stores, Inc., a Delaware corporation ("Lucky Delaware"), and its Subsidiaries) as a purchase of assets for federal income Tax purposes, (y) the purchase of Lucky Delaware as a purchase of stock for federal income Tax purposes and (z) the Separation as a transaction that does not result in any gain, including any deferred intercompany gain, for federal income Tax purposes (other than with respect to the distribution of certain New Diamond Assets from Lucky Delaware and its Subsidiaries pursuant to ARTICLE XI this Separation Agreement). In furtherance of the parties' desire and intention, at the option of SV: New Diamond and Onyx shall indemnify (i) jointly make timely and hold harmless Seller from irrevocable elections under Section 338(h)(10) of the Code (and against any corresponding elections under state or local tax law) (the "338(h)(10) Elections") with respect to any Retained Entities designated by New Diamond (such entities, the "338(h)(10) Election Subsidiaries") (provided that this clause (i) shall not be available with respect to any Retained Entity designated by Onyx in writing no later than 60 days after the execution of this Separation Agreement as a Retained Entity to be purchased by an entity that is not a corporation for federal income Tax purposes), (ii) jointly cause any Retained Entities designated by New Diamond (such entities, the "Disregarded Entities") to be treated as "disregarded" entities within the meaning of Treasury Regulation Section 301.7701-3, including by way of conversion of such Retained Entities into Delaware limited liability companies on or prior to the Closing Date (such treatment, the "Disregarded Entity Treatment"), and all Losses incurred by Seller in connection with (iii) take such other actions as may be necessary or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.appropriate to further
Appears in 1 contract
Samples: Purchase and Separation Agreement (Albertsons Inc /De/)
Liability for Taxes. (i) Seller Except to the extent reflected as a Current Liability in the Final Net Working Capital Statement, the Sellers shall be liable for and pay, and pursuant to ARTICLE XI Article IX shall indemnify and hold harmless each the Buyer Group Member from and against any and all Losses and Expenses incurred by such any Buyer Group Member Indemnitee in connection with or arising from (A) all Taxes imposed on the Company or any of its Subsidiaries, or for which the Company or any of its Subsidiaries may otherwise be liable liable, as a result of having been a member of a Company Group of which the Company or any of its Subsidiaries is no longer a member (including including, without limitation, Taxes for which the Company or any of its Subsidiaries may be liable pursuant to Treasury Regulation Treas. Reg. § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the Company or any of its Subsidiaries ceasing to be a member of any Company Group) for periods ending on or before the Closing Date, and (B) all Taxes (other than any Taxes imposed on the Company or any of its Subsidiaries resulting from the Section 338(g) Election) imposed on the Company or any of its Subsidiaries, or for which the Company or any of its Subsidiaries may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date Date, including, without limitation, all Taxes in connection with, arising out of or resulting from the Transfer and Redemption, including any alternative minimum Tax, and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”)including, exceptwithout limitation, in each case, any obligations to contribute to the extent such Taxes were included payment of a Tax determined on the Closing Date Balance Sheet and taken into account in determining the Adjusted a consolidated, combined or unitary basis with respect to any Company Group). Final payment required by this indemnification shall be treated as a Purchase PricePrice adjustment.
(ii) For purposes of paragraph (a)(iSection 7.3(a)(i), whenever it is necessary to determine the liability for Taxes of the Company or any of its Subsidiaries for a Straddle Period, the determination of the Taxes of the Company or such Subsidiary for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company and its Subsidiaries for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company and its Subsidiaries were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis. Estimated Tax payments made by the Sellers, the Company or its Subsidiaries prior to the Closing Date reflected in the Final Net Working Capital Statement attributable to Straddle Periods shall reduce any liability for Taxes owed by the Sellers to the Buyer under this Section 7.3. If such estimated Tax payments exceed the Taxes owed by the Sellers to the Buyer under this Section 7.3, the Buyer shall promptly refund such excess to the Seller Representative on behalf of the Sellers.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer TaxAll Transfer Taxes, sales TaxTaxes, use TaxTaxes, stamp Tax, stock real estate transfer Taxor gains Taxes, or other similar Tax Taxes imposed on on, arising out of or otherwise relating to (i) the transactions contemplated sale of the Shares by this Agreementthe Sellers to the Buyer and (ii) the Transfer and Redemption, shall be borne and paid by the Sellers.
Appears in 1 contract
Liability for Taxes. (i) The Seller Group Members shall be liable for hold harmless, indemnify and paydefend each of the Buyer Indemnitees from and against, and pursuant shall compensate and reimburse each of the Buyer Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of the Buyer Indemnitees or to ARTICLE XI shall indemnify which any of the Buyer Indemnitees may otherwise directly or indirectly become subject at any time (regardless of whether or not such Damages relate to any third party claim) and hold harmless each Buyer Group Member that arise directly or indirectly from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from as a result of: (A) Taxes imposed on the Company any Group Company, or for which the any Group Company may otherwise be liable liable, as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of stateGroup, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company a Group Company, or for which the a Group Company may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (C) Taxes imposed on a Buyer Group Member as a result of such Buyer Group Member being a United States shareholder (within the meaning of Section 951(b) of the Code) of any Group Company, to the extent such amounts are attributable to Subpart F income (within the meaning of Section 952(a) of the Code) of such Group Company arising in (or that, but for the limitation under 952(c) of the Code, would have arisen in) a taxable year of the Group Company ending on or prior to the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date and (D) Taxes imposed on a Seller for any taxable year or period and (E) the “Pre-Closing cost and expense (including third party costs and expenses) of preparing Tax Period”), except, in each case, Returns for which Buyer is responsible under Section 11.01(b) to the extent such Taxes were included Tax Returns relate to tax years or periods ending on or prior to the Closing Date Balance Sheet and taken into account in determining or for which the Adjusted Purchase PriceSeller Group Members were responsible under Section 11.01(b).
(ii) For purposes of paragraph (a)(i)this Agreement, whenever it is necessary to determine the liability for Taxes of the a Group Company for a Straddle Period, the determination of the Taxes of the Group Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Group Company for the Straddle Period shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the Group Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as ad valorem and other similar Taxes imposed on property Taxes (“Property Taxes”), franchise based solely on capital, and depreciation deductions, shall be apportioned between such two (2) taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to . In determining whether a Pre-Closing Property Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period ending on or before the Closing Date or a Straddle Period (or portion thereof) beginning after ), any Property Tax shall be deemed a Property Tax attributable to the Closing Date or such refund or credit was included taxable period specified on the Closing Date Balance Sheet and taken into account in determining relevant Property Tax xxxx. For purposes of Section 11.01(a)(i), whenever it is necessary to determine the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to liability for Taxes of a United States shareholder (within the prior sentence within fifteen (15meaning of Section 951(b) days of the receipt or recognition Code) of a controlled foreign corporation (within the meaning of Section 957 of the applicable refund or credit by Buyer or its Subsidiaries. To Code) attributable to amounts included in the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount income of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from United States shareholder under Section 951 of the carryback of losses, credits or similar items from a Code for the taxable year or period of such controlled foreign corporation that begins on or before and ends after the Closing Date, the determination of liability for any such Taxes shall be made by assuming that the taxable year or period of the controlled foreign corporation consisted of two (2) taxable years or periods, one which ended at the close of the Closing Date and is attributable to the Company and, to other of which began at the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days beginning of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on day following the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund relevant items of income, gain, deduction, loss or credit of the controlled foreign corporation shall be allocated between such two (2) taxable years or periods on a “closing of the books basis” by assuming that the books of the controlled foreign corporation were closed at the close of the Closing Date; provided, however, that Subpart F income (within the meaning of Section 952 of the Code) of the controlled foreign corporation shall be determined without regard to which such Party is entitled Section 952(c) of the Code. For the avoidance of doubt, the limitations set forth in Section 9.03 shall not apply to the indemnification obligations under this subparagraph (iiiSection 11.01(a).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Liability for Taxes. (ia) Seller shall be liable for and payfor, and pursuant to ARTICLE XI shall defend, indemnify and hold Buyer harmless each Buyer Group Member from and against against, (i) any and all Losses and Expenses Taxes incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable USTMAN for any taxable year period ending on or before the Closing Date, (ii) any income Taxes caused by, or arising from, the Section 338(h)(10) Election, (iii) any transfer or sales Taxes arising from the transactions
(b) Seller shall prepare, or cause USTMAN to prepare, and submit to Buyer all Tax Returns of USTMAN (and any Tax partnerships in which (i) USTMAN owns an interest and (ii) Seller or USTMAN has responsibility for preparing and filing partnership Tax Returns) for Taxes for any taxable period that ends ending on or before the Closing Date and for which the portion due date of any Straddle Period ending on and including such Tax Return is subsequent to the Closing Date Date. Any such Tax Return shall be prepared on a basis consistent with Tax Returns prepared with respect to USTMAN for prior taxable periods, unless otherwise required by law, and shall be submitted to Buyer not later than (i) in the “Pre-Closing case of any United States federal income Tax Period”)Return, except60 days before the due date of such Tax Return, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes in the case of paragraph any
(a)(i)c) Buyer and its Affiliates, whenever it is necessary including USTMAN, are responsible for preparing and filing with the appropriate taxing authorities all Tax Returns which relate to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the USTMAN other than those described in Section 6.14(c), except that Tax Returns which relate to a Post-Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between completed by Buyer. Seller shall cooperate with Buyer and shall make available all necessary records and timely take all action necessary to allow Buyer to file, or prepare and file, as the case may be, the Tax Returns described in this paragraph (including, without limitation, providing or causing to be provided to Buyer any powers of attorney which Buyer shall request for purposes of filing any such two taxable years or periods Tax Returns). Such Tax Returns shall be prepared on a “closing of the books basis” by assuming that the books of the Company were closed at the close of basis consistent with those prepared with respect to USTMAN for taxable periods ending on or before the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basisunless otherwise required by law.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Liability for Taxes. (i) Except to the extent that Taxes accounted for in Working Capital, Seller Parties shall bear and be liable for and payresponsible for, and pursuant to ARTICLE XI shall jointly and severally indemnify and hold harmless each Buyer the Alliant Indemnified Parties against, and reimburse any Alliant Indemnified Party for, all of the following Taxes that such Alliant Indemnified Party may suffer or incur, or become subject to during the period referenced in Section 8.5(a)(iv): (i) all Taxes of any member of the Parent Affiliated Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (is liable, including Taxes for which the Company may be liable pursuant to Treasury Regulation Treas. Reg. § 1.1502-6 or similar provisions provision of statestate or local Law, local or foreign law as a result of the Company having been a member of a Company Group and any the Parent Affiliated Group, (ii) all other Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be is liable for Pre-Closing Tax Periods, (iii) with respect to any taxable year or period that ends on or before Straddle Period, all Taxes for which the Closing Date and Company is liable which are allocable, pursuant to Section 8.5(a)(ii)), to the portion of any such Straddle Period ending on and including the Closing Date Date; and (iv) all Taxes resulting from the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceSection 338(h)(10) Elections.
(ii) For purposes of paragraph (a)(i), whenever Whenever it is necessary to determine the liability for Taxes of the Company for the portion of a Straddle PeriodPeriod that ends on or before the Closing Date, and the portion of a Straddle Period that begins after the Closing Date, the determination Taxes allocable to the portion of such Straddle Period that ends on the Closing Date shall be (A) in the case of Taxes other than Taxes described in the following clause (B), (other than Transfer Taxes), deemed equal to the amount which would be payable if the taxable period ended on the Closing Date (based upon an interim closing of the books as of the end of the Closing Date); and (B) in the case of Taxes imposed on a periodic basis with respect to the assets of the Company (such as real, personal, intangible property Taxes), deemed to be the amount of such Taxes for the portion entire period, multiplied by a fraction the numerator of which is the Straddle Period number of calendar days in the period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other denominator of which began at is the beginning number of calendar days in the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, entire period; provided, however, that exemptions, allowancesallowances or deductions, deductions or Taxes other than those that are based on the calculation of income Taxes, that are calculated on an annual basis, such as with respect to property Taxes and depreciation deductionsTaxes, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any Any real property transfer or gains Tax, sales Tax, use Tax, transfer Tax, value added Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementAgreement and the other Transaction Agreements (the “Transfer Taxes”) shall be borne shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Alliant. Any Tax Returns with respect to Transfer Taxes shall be prepared by the party required to do so pursuant to applicable Law.
(iv) The Seller Parties’ indemnification obligations under this Section 8.5(a) shall remain in effect and survive until the expiration of the relevant statute of limitations, plus sixty (60) days.
Appears in 1 contract
Samples: Securities Purchase Agreement (South Plains Financial, Inc.)
Liability for Taxes. (i) Each Asset Seller and, to the extent any Asset Seller is unable to pay, Seller, shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against pay any and all Losses and Expenses incurred by such Buyer Group Member Taxes levied or imposed upon, in connection with with, or arising from (A) Taxes imposed on attributable to, the Company Acquired Assets, that accrue or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant relate to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period (or portion thereof) ending or deemed to end at or prior to the close of business on the Closing Date; provided that, each Asset Seller shall not be liable to the extent that ends on (a) a provision or reserve in respect of that Tax (or loss caused by such Tax) has been made in the Closing Working Capital, (b) such Tax liability is expressly and specifically included in the Business Financial Statements, (c) such Tax liability is a direct result of an action or omission by the Purchaser, its transferee or their Affiliates outside of the ordinary course of business after the Closing (other than an action or omission expressly required by applicable Law) or (d) such Tax liability is a direct result of an action or omission by Seller or its Affiliates before the Closing Date at the express written direction of the Purchaser. Purchaser shall be liable for and the portion of pay (x) any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), exceptall Taxes levied or imposed on, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years connection with or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund Acquired Assets that accrue or credit, except otherwise relate to the extent such refund any taxable year or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning or deemed to begin after the Closing Date or such refund or credit was included close of business on the Closing Date Balance Sheet and taken into account (y) any Taxes described in determining clauses (a), (b), (c) and (d) of this Section 4.20(b)(i).
(ii) Seller shall be responsible for any Taxes that accrue or otherwise relate to any taxable year or period (or portion thereof) ending or deemed to end at or before the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days close of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or business on the Closing Date or refund claims. To payable by the Target Entities and their Subsidiaries; provided that, Seller shall not be liable to the extent that (a) a provision or reserve in respect of that Tax (or loss caused by such refund Tax) has been made in the Closing Working Capital, (b) such Tax liability is expressly and specifically included in the Business Financial Statements, (c) such Tax liability is a direct result of an action or credit omission by the Purchaser, its transferee or their Affiliates outside of the ordinary course of business after the Closing (other than an action or omission expressly required by applicable Law) or (d) such Tax liability is subsequently disallowed a direct result of an action or required to be returned to omission by Seller or its Affiliates before the applicable Governmental Body, Seller agrees promptly to repay Closing at the amount express written direction of such refund or credit to Buyerthe Purchaser. Buyer Purchaser shall be entitled responsible for (x) any Taxes payable by the Target Entities or any of their Subsidiaries that accrue or otherwise relate to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins (or portion thereof) starting or deemed to start after the close of business on the Closing Date and is attributable to the Company and(y) any Taxes described in clauses (a), to the extent such refund is actually received by Seller or its Affiliates(b), any such refund or credit shall be paid by Seller to Buyer within fifteen (15c) days and (d) of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iiiSection 4.20(b)(ii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Albany International Corp /De/)
Liability for Taxes. (ia) Except to the extent treated as a liability in the calculation of the Statutory Adjusted Capital, Seller shall be liable for and payindemnify Buyer for all Taxes (including, and pursuant without limitation, any obligation to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection contribute to the payment of a tax determined on a consolidated, combined or unitary basis with respect to a group of corporations that includes or arising from (A) Taxes imposed on included the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group AFIMS and any Taxes resulting from the Company or AFIMS ceasing to be a member of the Seller’s Group), (i) imposed on the Seller Group (other than the Company or AFIMS) for any Company Grouptaxable year, (ii) and (B) Taxes imposed on the Company or AFIMS or for which the Company or AFIMS may otherwise be liable for any taxable year or period that ends on or before the Closing Date and, with respect to any taxable year or period beginning before and ending after the Closing Date, the portion of any Straddle Period such taxable year ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, Date. Except to the extent such treated as an asset in the calculation of the Statutory Adjusted Capital, Seller shall be entitled to any refund of Taxes were included of the Company or AFIMS for any tax period or portion thereof ending on or before the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Priceor for which Seller was otherwise responsible.
(iib) Except to the extent arising from a breach of representation or covenant of the Seller or from obligations set forth herein or in the Coinsurance Agreement, Buyer shall be liable for and indemnify Seller for the Taxes of the Company and AFIMS for any taxable year or period that begins after the Closing Date and, with respect to any taxable year or period beginning before and ending after the Closing Date, the portion of such taxable year beginning after the Closing Date. Buyer shall be entitled to any refund of Taxes of the Company and AFIMS received for such periods.
(c) For purposes of paragraph paragraphs (a)(ia) and (b), whenever it is necessary to determine the liability for Taxes of the Company or AFIMS for a Straddle Periodportion of a taxable year or period that begins before and ends after the Closing Date, the determination of the Taxes of the Company or AFIMS for the portion of the Straddle Period year or period ending on on, and including the portion of the year or period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two Company or AFIMS had a taxable years year or periods, one period which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, except that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two on a time basis.
(d) Seller hereby indemnifies Buyer for and agrees to hold it harmless for any adverse tax consequence or any other loss or expense arising out of a misrepresentation or breach of warranty made by Seller to Buyer in Section 3.18.
(e) Seller hereby indemnifies Buyer and agrees to hold it harmless from any adverse tax consequence to the Company or any other loss or expense (including any adverse tax consequence arising out of the Company being required to decrease its basis in any assets) to the extent that the Internal Revenue Service recharacterizes or fails to respect the identified mixed straddle elections set forth on Schedule 8.01(e) made by the Company pursuant to Section 1092(b) of the Code and the regulations thereunder in July of 2004.
(f) Any payment by Buyer or Seller under this Section 8.01(e) will be an adjustment to the Purchase Price.
(i) Seller shall file or cause to be filed when due all Federal Tax Returns and Combined Tax Returns that are required to be filed by or with respect to the Company or AFIMS for taxable years or periods ending on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to before the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or creditDate and, except to the extent treated as a liability in the calculation of Statutory Adjusted Capital, shall pay any Taxes due in respect of such refund Federal Tax Returns and Combined Tax Returns, and (ii) Seller shall file or credit arises as cause to be filed when due all Tax Returns that are required to be filed on or before the result Closing Date by or with respect to the Company and AFIMS for taxable years ending on or before the Closing Date and shall pay any Taxes due in respect of a carryback of a loss such Tax Returns. Buyer shall file or cause to be filed when due all Tax Returns (other tax benefit from a than the Tax period Returns referred to in clause (g)(i)) required to be filed by or portion thereof) beginning with respect to the Company and AFIMS after the Closing Date with respect to any Pre-Closing Tax Period. Any such Return shall be prepared in a manner consistent with past practice and without a change of any election or such refund or credit was included on the Closing Date Balance Sheet any accounting method and taken into account in determining the Adjusted Purchase Price. shall be submitted by Buyer shall payto Seller for Seller’s approval (together with schedules, or cause to be paidstatements and, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, supporting documentation) at least ten (10) business days prior to the due date (including extensions) of such Tax Return, provided that Buyer shall not be required to prepare such Returns in a manner consistent with past practice, and it may change any election or any accounting method, and it shall not be required to obtain Sellers approval, to the extent that Buyer waives its right to be indemnified by Seller from any liability arising by reason of any item, election, or method that differs from past practice. Buyer agrees to make such changes in such Tax Returns as Seller shall reasonably request, provided that Buyer will reasonably cooperate with not be required to make any such reasonable changes to the extent that it agrees to release Seller in obtaining from its obligation to indemnify Buyer for any Taxes arising by reason of Buyer’s failure to accept such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claimsproposed change. To the extent Seller is responsible for such refund Tax under this Article 8, Seller shall pay the amount due on the Tax Return to Buyer two (2) Business Days prior to the date that the Tax becomes due.
(h) Buyer shall promptly notify Seller in writing upon receipt by Buyer, any of its affiliates or credit is subsequently disallowed the Company and AFIMS of notice of any pending or threatened federal, state, local or foreign income or franchise tax audits or assessments which may affect the tax liabilities of the Company and AFIMS for which Seller would be required to be returned indemnify Buyer pursuant to Section 8.01(a), provided that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the applicable Governmental Body, extent Seller’s ability to defend against any such tax claim is materially prejudiced thereby. Seller agrees promptly shall control the defense of any claim for Taxes relating to repay income Taxes of the amount of such refund or credit to Buyer. Seller Group; provided that Buyer shall be entitled to participate at its expense in the defense of any refund or credit with respect to Taxes (including any interest relating thereto) that results from such claim which may be the carryback subject of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received indemnification by Seller or its Affiliates, pursuant to Section 8.01(a) . Buyer shall control the defense of any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days claim for Taxes other than income Taxes of the receipt of such refund by Seller. Buyer Seller Group, provided that Seller shall be entitled to participate at its expense in the defense of any refund claim which may be the subject of indemnification by Seller pursuant to Section 8.01(a); provided further that Buyer may not settle or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Pricecompromise any such claim without Seller’s consent, which may not be unreasonably withheld. Buyer and may settle or compromise any such claim without Seller’s consent if it agrees to release Seller of its indemnification obligation with respect to such claim. For the avoidance of doubt, the provisions set forth in Section 10.03(i) shall take reasonable steps as may be requested by apply mutatis mutandis to the other Party to obtain any refund or credit to which such Party is entitled control of the defense of claims for Taxes under this subparagraph (iii)Article 8.
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allmerica Financial Corp)
Liability for Taxes. (ia) Seller Sellers shall be jointly and severally liable for and pay, and pursuant to ARTICLE XI Article 10 shall indemnify and hold harmless each Buyer Group Member from (and the Company and each Subsidiary) against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (A) Taxes imposed on the Company or any Subsidiary, or for which the Company or any Subsidiary may otherwise be liable liable, (i) as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”)including, exceptwithout limitation, in each case, any obligations to contribute to the extent payment of a Tax determined on a consolidated, combined or unitary basis with respect to any Company Group and any Taxes resulting from the Company or any Subsidiary ceasing to be a member of any Company Group) except insofar as provision for such Taxes were included will have been accrued for in the Closing Accounts or (ii) with respect to any Taxes either prior to Closing or subsequent to Closing in any way related to the Management Agreements.
(b) Buyer shall be liable for and pay, and pursuant to Article 10 shall indemnify Sellers against, all Taxes imposed on the Company or any Subsidiary for any taxable year or period that begins after the Closing Date Balance Sheet and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date provided, however, that Buyer shall not be liable for or pay, and taken into account in determining the Adjusted Purchase Priceshall not indemnify Sellers against, any Taxes for which Sellers are liable under this Agreement (including, without limitation, Section 4.7 and Section 9.1(a).
(iic) For purposes of paragraph paragraphs (a)(ia) and (b), whenever it is necessary to determine the liability for Taxes of the Company or any Subsidiary for a Straddle Period, the determination of the Taxes of the Company or such Subsidiary for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and and, subject to paragraph (d) of this Section 9.1, items of income, gain, deduction, loss or credit of the Company or such Subsidiary for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company or such Subsidiary were closed at the close of the Closing Date, provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiid) Seller Notwithstanding anything herein to the contrary, Sellers shall be liable for and shall pay, and pursuant to Article X shall indemnify each Buyer Group Member (and the Company and each Subsidiary) against, any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement except any transfer tax due by the Buyer in application of Article 726 of the French tax code., and any similar tax in Germany
(e) If Sellers become entitled to the amount of any a refund or credit of Taxes of the Company for which it is liable under paragraph (including any interest relating theretoa) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closingindemnify Buyer, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required attributable to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company andor any Subsidiary, Sellers shall promptly pay to Buyer the extent such refund is actually received by Seller or its Affiliates, any amount of such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of together with any interest thereon. In the receipt of such refund by Seller. Buyer shall be entitled to event that any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. of Taxes for which a payment has been made to Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund is subsequently reduced or credit to which such Party is entitled under this subparagraph (iii).
(iv) disallowed, Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and the Sellers for any Tax assessed against any and all Losses incurred Sellers by Seller in connection with reason of the reduction or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreementdisallowance.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Med Technologies Inc)
Liability for Taxes. (i) Seller The Selling Parties shall be liable for and pay, and pursuant to ARTICLE XI Article VIII from and after the Closing Date shall indemnify and hold harmless each the Buyer Group Member Members harmless from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from out of, (A) all Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including its Subsidiaries, or Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions any of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company its Subsidiaries may otherwise be liable liable, for any taxable year or period that ends on or before the Closing Date and and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date Date, (B) any liability for Taxes (including, but not limited to, pursuant to Treasury Regulations § 1.1502-6) for which the “Pre-Company or any of its Subsidiaries is responsible (by reason of requirements of law or otherwise) as a result of having been a member, on or before the Closing Date, of any affiliated, consolidated, combined or unitary or similar group for United States federal, state or local Tax Period”)purposes, exceptand (C) any real property transfer or gains Tax, in each casesales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement. Buyer shall be liable for and pay, and pursuant to the extent such Taxes were included on Article VIII from and after the Closing Date Balance Sheet shall indemnify and taken into account in determining hold the Adjusted Purchase Price.
Selling Parties harmless from and against any and all Losses arising out of, (iiA) all Taxes imposed on the Company, or for which Taxes the Company may otherwise be liable, for any taxable year or period that ends after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending after the Closing Date, and (B) any liability for Taxes for which the Company is responsible as a result of having been a member, after the Closing Date, of any affiliated, consolidated, combined or unitary or similar group for United States state, federal or local Tax purposes. For purposes of paragraph (a)(ithis Section 7.1(a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, ; provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductionsthe deduction for depreciation, shall be apportioned between such two taxable years or periods on a daily basis.
(iiiii) Seller shall be entitled to the amount of any refund or If Buyer receives a credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing to, or refund of, any Tax Period to for which the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing Selling Parties are liable pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by 7.1(a)(i), Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable shall pay over to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay Selling Parties the amount of such refund or credit to Buyerwithin fifteen(15) days after receipt thereof. Buyer shall be entitled to In the event that any refund or credit with respect to of Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from for which a taxable year or period that begins after the Closing Date and is attributable payment has been made to the Company andSelling Parties by Buyer is subsequently reduced or disallowed, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI Selling Parties shall indemnify and hold harmless Seller from and the Buyer Group Members for any Tax assessed against them by reason of the reduction or disallowance. For purposes of this Section 7.1(a)(ii), Tax refunds shall include any and all Losses incurred interest that is paid as part of the payment of such refunds, reduced by Seller the increase in connection with or arising from any real property transfer Taxthe original payee’s federal, sales Taxstate, use Taxlocal, stamp Tax, stock transfer Tax, foreign or other similar Tax imposed on the transactions contemplated by this AgreementTaxes payable attributable to such interest after taking into account any offsetting deductions or credits.
Appears in 1 contract
Liability for Taxes. (ia) Seller shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each the Buyer Group Member Indemnified Parties from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from against, (Ai) Taxes imposed on the Company or for which the Company may otherwise be liable Acquired Companies as a result of the Acquired Companies having been a member of Seller’s Group prior to the Closing Date (including, for the avoidance of doubt, any liability under Treasury Regulation Section 1.1502-6 and similar provisions of state, local or non-U.S. Law, and liability as a Company Group successor or transferee), (ii) income and premium Taxes imposed on the Acquired Companies for any Pre-Accounts Date Taxable Periods and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Accounts Date, (iii) Taxes in excess of the Deemed Tax Liability imposed on the Acquired Companies or for which the Company Acquired Companies may otherwise be liable for any Post-Accounts Date Taxable Period (or portion thereof) ending on or before the Closing Date, and, with respect to any Straddle Period, the portion of such Straddle Period beginning on the day after the Accounts Date and ending on the earlier of the end of such period and the Closing Date, (iv) Taxes that arise from or are attributable to any breach of any covenant under Article X and any inaccuracy in or breach of representation or warranty made in Section 5.23(d), (e), (f), (g) or (k), (v) any Tax imposed on the Acquired Companies under Treasury Regulations Section 1.367(b)-3 or otherwise as a result of the dissolution, liquidation, termination or winding up of the Hartford International Asset Management Company Limited occurring after the Closing Date as described in Section 8.27(a), (vi) any Tax imposed on the Acquired Companies to the extent relating to the dissolution, liquidation, termination or winding up of the HVIT Funds Platform pursuant to Treasury Regulation § 1.1502-6 the provisions of Section 8.26, and (vii) any Tax imposed on the Acquired Companies to the extent relating to actions required in connection with the closure of HLIC’s Canadian branch; provided, that Seller shall not be liable for or pay, and shall not indemnify Buyer from and against, (A) any Taxes that result from any actual or deemed election under Sections 336(e) or 338 of the Code or any similar provisions of state, local or foreign law Law as a result of having been the purchase of the Shares or the deemed purchase of the Capital Stock of any other Acquired Company or that result from Buyer, any Affiliate of Buyer or (after the Closing Date) the Acquired Companies engaging in any activity or transaction that would cause the transactions contemplated by this Agreement to be treated as a member purchase or sale of a Company Group and assets of the Acquired Companies for foreign, federal, state, local or other Tax purposes in each case, other than the Section 338(h)(10) Elections, (B) any Taxes resulting from the ceasing to be a member of any Company Groupfor which Buyer is liable under Section 10.01(b) and (BC) any Taxes to the extent taken into account as a Liability or reserve for Taxes in preparing the GAAP Financial Statements as of the Accounts Date that do not constitute a Deemed Tax Liability (Taxes described in clauses (A) and (C) of this proviso, “Excluded Taxes”). Seller shall be entitled to any refund of (or credit for) Taxes allocable to any Pre-Accounts Date Taxable Periods and, with respect to any Straddle Period, the portion of such Straddle Period ending on the day before the Accounts Date except in respect of any refund shown as a current asset on the GAAP Financial Statements as of the Accounts Date or in respect of any carry back from a taxable period beginning after the Closing Date to a Pre-Accounts Date Taxable Period. Any such refunds received by Buyer or its Affiliates shall be promptly, and in any event within thirty (30) days of the receipt of such refund, paid over to Seller (less out-of-pocket expenses incurred in connection with obtaining such refund and less any Taxes incurred in connection with the receipt of such refund). To the extent it is within its reasonable control, Buyer shall and shall cause its Affiliates to take reasonable steps to secure any such refund or credit that would be available.
(b) Buyer shall, without duplication of amounts paid by the Acquired Companies under Section 10.05(b), be liable for and pay, and shall indemnify and hold harmless the Seller Indemnified Parties from and against, any Losses with respect to (i) Taxes to the extent taken into account in the Deemed Tax Liability calculated for any Post-Accounts Date Taxable Period (or portion thereof) ending on or before the Closing Date, and, with respect to any Straddle Period, the portion of such Straddle Period beginning on the day after the Accounts Date and ending on and including the Closing Date, (ii) any breach or failure of Buyer to perform any of its covenants or obligations contained in this Article X, (iii) Taxes imposed on the or required to be paid by a Seller Indemnified Party with respect to a Taxable Period of any Acquired Company or for which the Company may otherwise be liable for any taxable year or period that ends ending on or before the Closing Date arising as a result of actions taken by any Acquired Company after the Closing Date unless otherwise permitted under this Agreement, and (iv) Excluded Taxes. Buyer shall be entitled to any refund of (or credit for) Taxes for which Buyer is liable under Section 10.01 or that arises because of a Tax or carry back allocable to any Post-Accounts Date Taxable Periods and, with respect to any Straddle Period, the portion of any such Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included starting on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase PriceAccounts Date.
(iic) For purposes of paragraph (a)(iSection 10.01(a) and Section 10.01(b), whenever it is necessary to determine the liability for Taxes of the Company Acquired Companies for a partial period (including a Straddle Period), the determination of the Taxes of the Company Acquired Companies for the portion of the Straddle Period period ending on and including including, and the Closing portion of the period beginning after, the Accounts Date shall be determined by assuming that the Straddle Period period consisted of two taxable (2) Taxable years or periods, one which ended at the close of the Closing Accounts Date and, for income tax purposes (and purposes of any other tax that is based on income), the other which began at the beginning of the day following after the Closing Date Accounts Date, and items of income, gain, deduction, loss or credit of the Company Acquired Companies for the Straddle Period period shall be allocated between such two taxable (2) Taxable years or periods on a “closing of the books basis” by assuming that the books of the Company Acquired Companies were closed at the close of the Closing DateAccounts Date (which, for the avoidance of doubt, shall be treated as the end of a Taxable year or period for this purpose); provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, such as property the deduction for depreciation, and all other allocations for Taxes and depreciation deductionsother than either income Taxes or Taxes that are based on income (including premium taxes), shall be apportioned between such two taxable (2) Taxable years or periods on a daily basisbasis based on the relative number of days in each such two (2) Taxable years or periods.
(iiid) Seller shall be entitled Notwithstanding anything herein to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closingcontrary, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller each shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph pay fifty percent (iii).
(iv50%) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from of any real property transfer or real property gains Tax, transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementAgreement other than the Seller’s Transactions.
(e) In the event that, as a result of an IRS adjustment (following exhaustion of administrative appeals), the Acquired Companies are required to treat any Reinsurance Tax Items as (i) occurring on or prior to the Closing Date or (ii) as a “built-in loss,” in each case, for purposes of Section 382 of the Code, Seller shall be liable for and pay, and shall indemnify and hold harmless the Buyer Indemnified Parties from and against any increase in federal income Tax payable by the Acquired Companies to the extent arising from adjustments in respect of such Reinsurance Tax Items (“Reinsurance Tax Damages”). Reinsurance Tax Damages shall be determined on a with and without basis with respect to the transactions contemplated by the Specified Third-Party Reinsurance Agreements, and shall be calculated on a present-value basis consistent with the definition of After-Tax Basis. Notwithstanding anything to the contrary herein, in no event shall Seller’s liability for Reinsurance Tax Damages under this Agreement exceed an amount equal to the excess of (A) the Buyer Agreed Cap over (B) the Final Reinsurance Attribute Allowance, as finally determined. For the avoidance of doubt, if the Specified Third-Party Reinsurance Agreements are not executed, Seller shall have no liability under this Section 10.01(e), and this Section 10.01(e) shall have no further force or effect.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Hartford Financial Services Group Inc/De)
Liability for Taxes. (ia) Seller SGOM shall be liable for, and shall indemnify, defend and hold harmless SHLX from any unpaid Taxes (including related penalties and interest) imposed on or incurred with respect to the Xxxxxx Subject Interests attributable to any taxable period (or portion thereof) ending prior to the Closing Date. SHLX shall be liable for any Taxes (including related penalties and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless each Buyer Group Member from and against any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from (Ainterest) Taxes imposed on the Company or for which the Company may otherwise be liable as a result of having been a member of a Company Group (including Taxes for which the Company may be liable pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group and any Taxes resulting from the ceasing to be a member of any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, to the extent such Taxes were included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price.
(ii) For purposes of paragraph (a)(i), whenever it is necessary to determine the liability for Taxes of the Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) incurred with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates Xxxxxx Subject Interests attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax any taxable period (or portion thereof) beginning on or after the Closing Date.
(b) Shell Chemical and SOPUS shall be jointly and severally liable for, and shall indemnify, defend and hold harmless Triton from any liability for (i) Taxes of Shell Chemical and SOPUS (and their respective Affiliates) and (ii) Taxes imposed on or incurred by or with respect to the Norco Assets, as applicable, attributable to any taxable period ending prior to the Closing Date or portion thereof to the extent occurring prior to the Closing Date. Triton shall be responsible for any Taxes imposed on or incurred by or with respect to the Norco Assets attributable to any taxable period beginning on after the Closing Date or such refund portion thereof to the extent occurring on or credit was included on after the Closing Date Balance Sheet Date.
(c) Whenever it is necessary for purposes of this Article IX to determine the amount of any Taxes imposed on or incurred by or with respect to the Xxxxxx Subject Interests or the Norco Assets for a taxable period beginning before and taken into account ending after the Closing Date, which is allocable to the period ending before the Closing Date, and the allocation is not otherwise prescribed by Applicable Law or agreement in determining effect as of the Adjusted Purchase Price. Buyer date hereof, such amount shall pay, or cause be deemed to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from Tax for the carryback entire Tax period multiplied by a fraction, the numerator of losses, credits or similar items from a taxable year or which is the number of days in the Tax period that begins after ending the day before the Closing Date and the denominator of which is attributable to the Company andnumber of days in the entire Tax period.
(d) If a SHLX Party receives a refund of any Taxes (including related penalties and interest) that a Shell Party is responsible for hereunder, to or if a Shell Party receives a refund of any Taxes (including related penalties and interest) that a SHLX Party is responsible for hereunder, the extent party receiving such refund is actually received by Seller or its Affiliatesshall, any such refund or credit shall be paid by Seller to Buyer within fifteen ninety (1590) days of the after receipt of such refund by Sellerrefund, remit it to the party which has responsibility for such Taxes hereunder. Buyer The parties shall be entitled cooperate in order to any refund or credit included on the Closing Date Balance Sheet take all necessary and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain claim any refund or credit to which such Party is entitled under this subparagraph (iii)refund.
(ive) Buyer shall be liable for For federal income tax purposes, the parties agree to report any payments or asset transfers with respect to Section 2.4, Section 8.5, Section 8.6, Section 9.1, Section 11.1 and pay, and pursuant Section 11.2 as an adjustment to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this AgreementConsideration.
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Samples: Purchase and Sale Agreement (Shell Midstream Partners, L.P.)
Liability for Taxes. (ia) Seller shall Sellers will be liable for and pay, and pursuant to ARTICLE XI shall will indemnify Buyer and hold harmless each Buyer Group Member from and Company against (i) all Taxes imposed on Company, or for which Company may otherwise be liable, for any and all Losses and Expenses incurred by such Buyer Group Member in connection with or arising from Pre-Closing Tax Period, other than (A) Taxes imposed on Company (as opposed to Sellers) resulting from the Company or Elections if made (other than Taxes described in clause (ii) hereof), and (B) the amount reflected as a current liability for which Taxes included in the Company may otherwise be liable calculation of Final Working Capital, and (ii) any additional Taxes not covered by clause (i) arising as a result of having been a member any breach of a Company Group (including Taxes for which the Company may representation contained in Section 3.15 and the covenants of Sellers contained in Section 7.2 and this Article 12; provided, however, that Sellers will in no event be liable pursuant for or required to Treasury Regulation § 1.1502-6 or similar provisions of state, local or foreign law pay Taxes imposed on Company with respect to any taxable period subsequent to the Closing Date as a result of having been a member breach of a Company Group and any Taxes resulting from the ceasing representation contained in Section 3.15(a) that all Tax Returns required to be a member of filed by, on behalf of, or that include, Company have been timely filed in all jurisdictions in which such Tax Returns are required to be filed. Notwithstanding any Company Group) and (B) Taxes imposed on the Company or for which the Company may otherwise be liable for any taxable year or period that ends on or before the Closing Date and the portion of any Straddle Period ending on and including the Closing Date (the “Pre-Closing Tax Period”), except, in each case, other provision to the extent contrary, Sellers’ indemnification obligations under this Section 12.1 will survive until the expiration of the statute of limitations applicable to such Taxes were included on matters and will not be subject to or count towards the Closing Date Balance Sheet and taken into account time or monetary limitations in determining the Adjusted Purchase PriceSection 11.2.
(iib) For purposes of paragraph subsection (a)(i)a) above, whenever it is necessary to determine the liability for Taxes of the Company for a period that begins before and ends after the Closing Date (a “Straddle Period”), the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including including, and the portion of the Straddle Period beginning after, the Closing Date shall will be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and Date, and, items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall will be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date, provided, however, that exemptions, allowances, allowances or deductions or Taxes that are calculated on an annual basis, basis (such as property Taxes the deductions for depreciation and depreciation deductions, shall real estate taxes) will be apportioned between such two taxable years or periods on a daily basis.
(iii) Seller shall be entitled to the amount of any refund or credit of Taxes of the Company (including any interest relating thereto) with respect to a Pre-Closing Tax Period to the extent such Taxes were paid by the Company prior to the Closing or by a Seller after the Closing pursuant to Section 8.2(a) or ARTICLE XI which refund or credit is actually recognized by Buyer or its Affiliates (including the Company) after the Closing, net of any cost to Buyer and its Affiliates attributable to the obtaining and receipt of such refund or credit, except to the extent such refund or credit arises as the result of a carryback of a loss or other tax benefit from a Tax period (or portion thereof) beginning after the Closing Date or such refund or credit was included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer shall pay, or cause to be paid, to Seller any amount to which Seller is entitled pursuant to the prior sentence within fifteen (15) days of the receipt or recognition of the applicable refund or credit by Buyer or its Subsidiaries. To the extent requested by Seller, Buyer will reasonably cooperate with Seller in obtaining such refund or credit, including through the filing of amended Tax Returns for periods ending before or on the Closing Date or refund claims. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Body, Seller agrees promptly to repay the amount of such refund or credit to Buyer. Buyer shall be entitled to any refund or credit with respect to Taxes (including any interest relating thereto) that results from the carryback of losses, credits or similar items from a taxable year or period that begins after the Closing Date and is attributable to the Company and, to the extent such refund is actually received by Seller or its Affiliates, any such refund or credit shall be paid by Seller to Buyer within fifteen (15) days of the receipt of such refund by Seller. Buyer shall be entitled to any refund or credit included on the Closing Date Balance Sheet and taken into account in determining the Adjusted Purchase Price. Buyer and Seller shall take reasonable steps as may be requested by the other Party to obtain any refund or credit to which such Party is entitled under this subparagraph (iii).
(iv) Buyer shall be liable for and pay, and pursuant to ARTICLE XI shall indemnify and hold harmless Seller from and against any and all Losses incurred by Seller in connection with or arising from any real property transfer Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement.
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