Liability for Taxes. (a) 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, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless from, (i) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2. (b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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). (c) Seller and Buyer will, to the 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. (d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received. (e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Snap on Inc), Stock and Asset Purchase Agreement (Proquest Co)
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller SPLC shall be liable for, shall cause the payment of and shall indemnify indemnify, defend and hold Buyerharmless 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 Buying Parties Closing Date or portion thereof to the extent occurring on or prior to the Closing Date.
(b) SHLX and the Acquired Entities harmless from, (i) subject to Section 12.2, Operating shall be liable for any Taxes caused (including related penalties and interest) imposed on or incurred by or resulting from with respect to the sale Subject Interests or the assets related to the Subject Interests attributable to any taxable period beginning after the Closing Date or portion thereof to the extent occurring after the Closing Date.
(c) Whenever it is necessary for purposes of this Article VI to determine the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) amount of any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (Subject Interests or the portion, determined as described in paragraph (b) of this Section 8.2, of any such Income Taxes assets related to the Subject Interests for any a taxable period beginning on or before and ending after the Closing Date 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 occurring (a) in the case of any property, ad valorem, or similar Taxes, 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 or before (and including) the Closing Date (and the “Straddle Period”)) except to denominator of which is the extent that such Income Taxes (x) arise from or are increased by transactions by number of days in the Acquired Entities outside the ordinary course of business after the Closing, or (y) arise from or are increased by a change after Closing 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 Closingentire Tax period, and (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes in the case of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Periodall other Taxes, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned deemed equal to the Pre-Closing Period ratably amount which would be payable as computed on a per diem “closing-of-the-books” basis and that any Income Taxes resulting from making the Section 338(h)(10) Elections shall be apportioned 100% to the Pre-Closing Period).
(c) Seller and Buyer will, to the extent permitted by applicable Law, elect with if the relevant taxing authorities to close all taxable periods of the Acquired Entities as of Tax period ended at the close of business on the Closing Date.
(d) Buyer agrees to pay to Seller If SHLX receives a refund of any Taxes (including related penalties and interest) that SPLC is responsible for hereunder, or if SPLC receives a refund received after the Closing Date by Buyerof any income taxes (including related penalties and interest) that SHLX is responsible for hereunder, the Buying Parties or any party receiving such refund shall, within ninety (90) days after receipt of such refund, remit it to the Acquired Entities, in respect of any Income party which has responsibility for such Taxes for which Seller is liable under paragraph (a) of this Section 8.2hereunder. The Parties 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer For federal income tax purposes, the parties agree that to report any payment made payments with respect to Taxes pursuant to this Section 2.4, Section 6.1, Section 8.1 and Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2Consideration.
Appears in 2 contracts
Samples: Contribution Agreement (Shell Midstream Partners, L.P.), Contribution Agreement
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller The Contributing Parties shall be liable for, shall cause the payment of and shall indemnify and hold Buyer, the Buying Partnership Parties and their respective subsidiaries harmless from any Taxes, together with any costs, expenses, losses or damages, including reasonable expenses of investigation and attorneys’ and accountants’ fees and expenses, arising out of or incident to the Acquired Entities harmless fromdetermination, assessment or collection of such Taxes (“Tax Losses”), (i) subject imposed on or incurred by the Contributed Entities by reason of Treasury Regulations Section 1.1502-6 or any analogous state, local or foreign law or regulation which is attributable to Section 12.2having been a member of any consolidated, any Taxes caused by combined or resulting from unitary group on or prior to and including the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections)Closing Date, (ii) any Income Tax Losses (other than Tax Losses described in clause (i) above) imposed on or incurred by or with respect to the Contributed Entities or the Contributed Entities’ Assets with respect to the period prior to and including the Closing Date, or (iii) attributable to a breach by any Contributing Party of any representation (other than those contained in Section 3.10, to which ARTICLE 9 shall be applicable), warranty or covenant with respect to Taxes in this Agreement; provided, however, the Contributing Parties’ liability for Tax Losses hereunder shall be reduced by the amount of any Taxes included in such Tax Losses to the extent taken into account in determining Final Net Working Capital.
(b) The Partnership Parties shall be liable for, and shall indemnify and hold the Contributing Parties and their Affiliates (other than the Partnership Parties and their subsidiaries) harmless from, any Tax Losses (i) imposed on or incurred by or with respect to the Contributed Entities or the Contributed Entities’ Assets with respect to the period after the Closing Date, or (ii) attributable to a breach by the Partnership Parties of any covenant with respect to Taxes in this Agreement.
(c) Whenever it is necessary for purposes of this ARTICLE 7 to determine the amount of any Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (Contributed Entities or the portion, determined as described in paragraph (b) of this Section 8.2, of any such Income Taxes Contributed Entities’ Assets for any a taxable period beginning on or before and ending after the Closing Date which is allocable to the portion of such period occurring on or before prior to and including the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle PeriodDate, 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 Presuch pre-Closing Period Date period constitutes a separate taxable period of applicable to the Acquired Contributed Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period taxable period beginning before and ending after the Closing Date that are calculated on an annual or periodic basis basis, such as the deduction for depreciation, shall be apportioned to the Pre-period prior to and including the Closing Period Date ratably on a per diem basis and that basis). Notwithstanding anything to the contrary herein, any Income Taxes resulting from making franchise tax paid or payable with respect to the Section 338(h)(10) Elections Contributed Entities or the Contributed Entities’ Assets shall be apportioned 100% allocated to the Pre-Closing Period).
(c) Seller and Buyer willtaxable 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 extent permitted by applicable Law, elect with the relevant taxing authorities to close all taxable periods payment of the Acquired Entities as of the close of business on the Closing Datesuch franchise tax.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or If any of the Acquired Entities, in respect Partnership Parties or their Affiliates receives a refund of any Income Taxes that any of the Contributing Parties are responsible for which Seller hereunder, or if the Contributing Parties or their Affiliates receive a refund of any Taxes that any of the Partnership Parties is liable under paragraph responsible for hereunder, the party receiving such refund shall, within ninety (a90) days after receipt of this Section 8.2such refund, remit it to the party who has responsibility for such Taxes hereunder; provided, however, the Partnership Parties’ obligation to remit a refund to the Contributing Parties hereunder shall be reduced by the amount of any Taxes included in such refund to the extent taken into account in determining Final Net Working Capital. The Parties 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Williams Partners L.P.)
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating on the Closing Working Capital ValueDate Balance Sheet, Seller shall be liable for, shall cause the payment of and shall indemnify indemnify, defend and hold harmless Buyer, HBI, the Buying Parties HBI Subsidiaries and the Acquired Entities harmless their Affiliates from, (i) subject to Section 12.2, any Taxes due from Seller caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), HBI Shares; (ii) any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in HBI or any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities HBI Subsidiary (or any Group consolidated group of which HBI or any HBI Subsidiary is a member with respect to the taxable items of the Acquired EntitiesHBI or any HBI Subsidiary (a "Group")) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (or the portion, determined as described in paragraph (bc) of this Section 8.210.01, 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 such period occurring on or before the Closing Date (the “Straddle "Pre-Closing Period”")) except to the extent that such Income Taxes (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 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 (iviii) any attorneys’ ' fees or other costs incurred by Buyer Buyer, HBI, the HBI Subsidiaries, or the Acquired Entities any Affiliate thereof in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.210.01(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 paragraph (aSection 10.01(a) of this or Section 8.2 10.01(b) to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities HBI or any HBI Subsidiary (or any Group) for a Straddle taxable period beginning on or before and ending after the Closing Date which is allocable to the Pre-Closing Period, the determination shall be 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 Pre-Closing Period constitutes a separate taxable period of HBI or the Acquired Entities HBI Subsidiary and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period taxable period beginning on or before and ending after the Closing Date that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Seller and Buyer will, to the 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.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.annual
Appears in 2 contracts
Samples: Purchase Agreement (Chicago Bridge & Iron Co N V), Purchase Agreement (Wedge Group Inc)
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller The Parent shall be liable forfor and pay, or shall cause the payment of applicable Seller to pay, and shall indemnify indemnify, defend, and hold Buyerharmless the Acquiror Indemnified Parties (as defined in Section 10.02(a)) from and against, the Buying Parties all Taxes and the Acquired Entities harmless fromLosses imposed on or incurred by any Acquiror Indemnified Party, or for which any Acquiror Indemnified Party may otherwise be liable, relating to (i) subject to Section 12.2, any Taxes caused by imposed upon any Company or resulting from any Transferred Subsidiary with respect to any Pre-Closing Taxable Period and, with respect to any Straddle Period, the sale portion of such Straddle Period ending on and including the Stock (including all Taxes arising from the Section 338(h)(10) Elections)Closing Date, (ii) any Income Taxes imposed on upon any Company or incurred 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 Acquired Entities arising out 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 inclusion interests or assets of the Acquired Entities in Companies or the Transferred Subsidiaries by the Acquiror or any combined, consolidated, unitary of its Affiliates following the Closing) or similar group (C) is a “Group”) prior 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 Income 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 incurred 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 Acquired Entities 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 Group 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 shall indemnify, defend, and hold harmless the Parent Indemnified Parties from and against, (i) all liabilities for Taxes imposed on any Company or Transferred Subsidiary, or for which any Company or Transferred Subsidiary may otherwise be liable, for any Post-Closing Taxable Periods and, with respect to any Straddle Period, the taxable items portion of such Straddle Period beginning after the Closing Date, (ii) Excluded Taxes and (iii) any breach or failure by the Acquiror to perform (or cause to be performed) any of the Acquired Entitiescovenants or agreements set forth in this Article VII.
(c) for any taxable period For purposes of clauses (the “Pre-Closing Period”a) ending on or before the Closing Date (or the portion, determined as described in paragraph and (b) of this Section 8.27.01, 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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income liability for Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination of the Taxes of any Company or Transferred Subsidiary for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be made, determined by assuming that the Pre-Closing Straddle Period constitutes a separate consisted of two taxable period years or periods, one which ended at the close of the Acquired Entities 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 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 taking into account assuming that the actual taxable events occurring during books of such period Company or Transferred Subsidiary were closed at the close of the Closing Date, provided, however, that Taxes imposed on a periodic basis (except that e.g., property taxes), and exemptions, allowances and or deductions for a Straddle Period that are calculated on an annual or periodic basis basis, such as the deduction for depreciation, shall be apportioned to the Pre-Closing Period ratably between such two taxable years or periods on a per 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).
(c) Seller and Buyer will, to the 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 Datedaily basis.
(d) Buyer agrees (i) To the extent any indemnity pursuant to pay to Seller any refund received after the Closing Date by BuyerSection 7.01(a)(i), Section 7.01(a)(iii) or Section 7.01(a)(iv) is includible in income, the Buying Parties or any Parent shall increase such indemnity payment to the applicable Acquiror Indemnified Party to compensate for the Japanese Tax detriment resulting from such inclusion (the aggregate of the Acquired Entitiessuch indemnity payment and such increase, in respect of any Income Taxes for which Seller is liable under paragraph (a) of this Section 8.2. The Parties a “Tax Indemnity Payment”); provided, however, that Parent and Acquiror shall cooperate in order to take all necessary direct payment to the Parent or a Seller on one hand, and reasonable steps to claim any such refund. Any such refund received by the Acquiror or a Party for the account of Designated Acquiror on the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or hand, as an indemnity under Article X shall be the case may be, if doing so would result in the Tax Indemnity Payment’s being treated by the parties on their Tax Returns as an adjustment to the Share Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.
Appears in 2 contracts
Samples: Stock Purchase Agreement (American International Group Inc), Stock Purchase Agreement (Prudential Financial Inc)
Liability for Taxes. (ai) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller Xxxxxxx shall be liable forfor and pay any and all Taxes imposed (A) on any Xxxxxxx Party for any taxable period or (B) with respect to the operation of the Business or the ownership or use of the Transferred Assets at or prior to the Closing; provided, however, that Xxxxxxx shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless from, not be liable for or pay (i) subject to Transfer Taxes described in Section 12.2, any Taxes caused by 9.2(a)(iv) or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the extent taken into account in calculating the Final Closing Date, (iii) Net Working Capital Amount. Xxxxxxx shall be entitled to any Income Taxes imposed on or incurred by the Acquired Entities refund of (or credit in lieu of any Group with respect to such refund) Taxes paid by Xxxxxxx, the taxable items of JV Entity, Xxxxxx Intermediate or the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending Company on or before the Closing Date or for which Xxxxxxx is liable and pays under this Agreement, net of any Taxes, costs or expenses imposed or incurred in connection with any such refund or credit; provided, however, that if following payment by any JV Entity Group Member to Xxxxxxx with respect to any such refund or credit it is determined that such refund or credit was improperly obtained, Xxxxxxx shall make a payment to the JV Entity equal to such refund or credit. The Company shall, and shall cause its Affiliates, at Xxxxxxx’ expense, to take such steps as may be reasonably available to secure any such refund or credit, including through the filing of amended Tax Returns. The Company shall inform Xxxxxxx 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.
(ii) The Company shall be liable for and pay any and all Taxes imposed with respect to the operation of the Business or the ownership or use of the Transferred Assets after the Closing. Except as otherwise provided herein, Company shall be entitled to any refund of (or credit for) Taxes for which it is liable under this Agreement. For the portionavoidance of doubt, determined as described in paragraph (b) of this Section 8.29.2(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), of with respect to any such Income Taxes for any taxable period beginning on or before and ending after the Closing Date which is allocable imposed in part with respect to the portion operation of such period occurring on the Business or before the Closing Date (use of the “Straddle Period”)) except Transferred Assets at or prior to the extent that such Income Taxes (x) arise from Closing, and in part with respect to the operation of the Business or are increased by transactions by the Acquired Entities outside use of the ordinary course of business Transferred Assets after the Closing, or (y) arise from or are increased by a change after Closing 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income such Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes allocated on a separate taxable period “closing of the Acquired Entities books” basis as two partial periods, one ending at the time of the Closing and by taking into account the actual taxable events occurring during such period (except other beginning immediately after the Closing; provided, however, that exemptions, allowances and deductions for a Straddle Period that are Taxes calculated on an annual basis without reference to income, receipts or periodic basis payroll, such as property Taxes, shall be apportioned to the Pre-Closing Period ratably on a per 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)daily basis.
(civ) Seller and Buyer will, Notwithstanding anything herein to the extent permitted by applicable Lawcontrary, elect with the relevant taxing authorities to close Company shall be liable for and pay any and all taxable periods of the Acquired Entities as of the close of business real property transfer or gains Taxes, sales Taxes, use Taxes, stamp Taxes, stock transfer Taxes or other similar Taxes imposed on the Closing Date.
(d) Buyer agrees to pay to Seller any refund received after transactions contemplated by the Closing Date by BuyerXxxxxxx Asset Assignment Agreement, the Buying Parties or any Xxxxxxx Equity Assignment Agreement, this Agreement (collectively, “Transfer Taxes”). For the avoidance of the Acquired Entitiesdoubt, in respect of any Income Transfer Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2include any income Taxes.
Appears in 2 contracts
Samples: Contribution and Investment Agreement (Allscripts Healthcare Solutions, Inc.), Contribution and Investment Agreement
Liability for Taxes. (a) Except to From and after Closing, the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller shall be liable forindemnify, shall cause the payment of and shall indemnify defend and hold Buyer, harmless the Buying Parties Buyer from and against any amounts actually paid by the Acquired Entities harmless from, (i) subject to Section 12.2, Buyer or the Company in respect of any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes that are imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in Company and attributable to any combinedtaxable period beginning after December 31, consolidated, unitary or similar group (a “Group”) 2005 and ending prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (or as well as the portion, determined as described in paragraph (b) of this Section 8.2Clause 9.1(b), of any such Income Taxes for any taxable period beginning (i) after December 31, 2005 but prior to the Closing Date and (ii) ending on or before and ending after the Closing Date Date, which is allocable to the portion of such period occurring on or before prior to the Closing Date (the “Straddle Pre-Effective Time Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 Agreement to determine the portion of any Income Taxes imposed of or with respect to the Company for a taxable period beginning prior to and ending after the Closing Date which is allocable to the Pre-Effective Time Period and the period occurring on or incurred by after the Acquired Entities Closing Date (or any Group) for a Straddle “Post-Effective Time Period”), the determination shall be made, made by assuming that the Pre-Closing Effective Time Period and the Post-Effective Time Period each constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during each such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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)period.
(c) Seller and Buyer will, 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 respect of the relevant Tax Return to which the extent permitted by applicable Law, elect claim for indemnification relates (“Tax Indemnity Period”) in accordance with the relevant taxing authorities provisions applicable to close all taxable periods of the Acquired Entities as of the close of business on the Closing Datea 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 agrees to pay be indemnified to Seller the extent that it corresponds to a mere change in the time when a Tax should have been paid or such Tax can effectively be deducted or recovered by the Company (except that the Buyer shall be entitled to be indemnified for any refund received 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 by Buyer, including the Buying Parties or any of the Acquired Entities, in respect filing of any Income Taxes for which Seller is liable applicable Tax Returns under paragraph (a) the provisions of this Section 8.2. The Parties shall cooperate in order any the Laws relating to take all necessary and reasonable steps to claim any such refund. Any such refund received by a Party for the account of the other Party shall be paid to such other Party within thirty (30) days after such refund is receivedHungarian Taxes.
(eii) The Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to have any liability for any Taxes which result from or arise out of actions taken or omissions by or on behalf of the provisions Buyer or the Company after the Closing concerning any changes in accounting methods or policies and/or the passing of, or any change in, any the Laws or administrative practice of any Governmental Authority, in any such case not actually in force at the date of this Section 8.2Agreement (even if retroactive in effect), including any increase in the rate of Taxes in effect at the date of this Agreement or the imposition of any Taxes not in effect at the date of this Agreement.
Appears in 1 contract
Liability for Taxes. (a) Except Purchasers shall be jointly and severally liable for, and shall indemnify Seller Indemnitees against, all Taxes arising or resulting from (i) 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 they agree to indemnify, defend and hold Purchaser Indemnities harmless from (i) any Tax imposed on an Acquired Entity if and to the extent that such Taxes are accrued as Tax arises in respect of a liability for purposes of calculating taxable period ended on or before the Closing Working Capital Value, Seller shall be liable for, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless from, (i) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Electionsa “Tax Indemnity Period”), (ii) any Income Taxes imposed Tax that constitutes a lien or Encumbrance on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior Assets if and to the Closing Dateextent that such Tax arises in respect of a Tax Indemnity Period, (iii) any Income Taxes imposed on Tax or incurred by other Losses resulting from the Acquired Entities 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 (or iv) any Group with respect to the taxable items costs and expenses (including, without limitation, reasonable expenses of investigation and attorneys’ fees and expenses) arising out of the Acquired Entitiesimposition 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 any a taxable period (the “Pre-Closing Period”) ending on or before the Closing Date 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 the Purchased Assets to Purchaser and the assumption of the Assumed Liabilities by Purchaser pursuant to this Agreement shall be deemed to arise in respect of a Tax Indemnity Period.
(or the portion, determined as described in paragraph c) For purposes of subsections (a) and (b) of this Section 8.211.1, 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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Liability for Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis Taxes shall be apportioned to between Sellers and Purchasers (A) in the Pre-Closing Period ratably case of Taxes other than income, sales and use and withholding taxes, on a per diem basis and that any Income Taxes resulting from making (B) in the Section 338(h)(10) Elections shall be apportioned 100% to case of income, sales and use and withholding taxes, as determined as though the Pre-Straddle Period consisted of two taxable years or periods, one which ended on the Closing Period).
(c) Seller Date and Buyer will, to the extent permitted by applicable Law, elect with other which began at the relevant taxing authorities to close all taxable periods beginning of the Acquired Entities as of the close of business on day following the Closing Date.
(d) Buyer agrees to Purchasers shall pay to Seller Sellers the amounts received by Purchasers or any refund received after of Purchasers’ Affiliates of any refund, abatement or credit of (A) Taxes which are attributable to the conduct of the Business or the ownership of the Acquired Assets on or prior to the Closing Date and (B) any other Tax Assets. In the case of any Straddle Period, Purchasers shall pay to Sellers the amount received by Buyer, any of the Buying Parties Purchasers or any of the Acquired Entities, in respect their Affiliates of any Income refund, abatement or credit of Taxes for which Seller is 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 that would have been made had the account of Taxable Period ended on the other Party shall be paid to such other Party within thirty (30) days after such refund is receivedClosing Date.
(e) Seller and Buyer agree that any payment made with respect Any assessment or other Claim by a governmental authority seeking to Taxes pursuant to this enforce or collect a Tax, Losses or Other Costs described in Section 8.2 or as an indemnity under Article X 11.1 shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply subject to the provisions of Section 10.4, 10.5, 10.6, 10.8 and 10.9 of this Agreement to the extent that Section 8.211.2 does not apply to such assessment or Claim.
(f) For the avoidance of doubt, notwithstanding any other contrary provisions of this Agreement, Sellers shall not be liable for any Taxes or related Losses to the extent such Taxes or related Losses are included in Assumed Liabilities.
Appears in 1 contract
Samples: Purchase Agreement (Stockgroup Information Systems Inc)
Liability for Taxes. (a) Except The Seller shall be liable for, and shall indemnify and hold the Purchaser and its Affiliates harmless from, any Taxes imposed on or incurred by any of the 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 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 are accrued as a liability for purposes of calculating taken into account in determining the Closing Final Net Working Capital Value, Seller Capital.
(b) The Purchaser shall be liable for, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties Seller and the Acquired Entities its Affiliates harmless from, any Tax Losses (i) subject to Section 12.2, any Taxes caused imposed on or incurred by or resulting from with respect to the sale of Target Companies or the Stock (including all Taxes arising from the Section 338(h)(10) Elections)Target Companies’ Assets with respect to a Post-Closing Period, or (ii) attributable to a breach by the Purchaser of any Income covenant with respect to Taxes in this Agreement.
(c) Whenever it is necessary for purposes of this ARTICLE 9 to determine the amount of any Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items Target Companies for a portion of the Acquired Entities) for any a taxable period (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 that begins before and ending ends after the Closing Date which is allocable to the portion of such period occurring on or before the a Pre-Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle 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 such portion of the Pre-period that is prior to and includes the Closing Period Date constitutes a separate taxable period of applicable to the Acquired Entities Target Companies and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis basis, such as the deduction for depreciation, shall be apportioned to the Pre-Closing Period ratably on a per diem basis and that basis). Notwithstanding anything to the contrary herein, any Income Taxes franchise tax paid or payable by the Target 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. Any credit or refund resulting from making an overpayment of Taxes for a taxable period beginning before and ending after the Section 338(h)(10) Elections Closing Date shall be apportioned 100% prorated based upon the method employed in this Section 9.1(c) taking into account the type of Tax to which the Pre-Closing Period).
(c) Seller and Buyer will, credit or refund relates. All determinations necessary to effect the extent permitted by applicable Law, elect foregoing allocations shall be made in a manner consistent with the relevant taxing authorities to close all taxable periods prior practice of the Acquired Entities as of the close of business on the Closing DateTarget Companies.
(d) Buyer agrees to The Purchaser shall be liable for, shall pay to and shall indemnify, defend and save harmless the Seller any refund received after and its Affiliates from and against all stock transfer, sales, use, documentary, stamp and other similar Taxes (“Transfer Taxes”) incurred in connection with the Closing Date by Buyer, the Buying Parties or any sale and transfer of the Acquired Entities, in respect of any Income Taxes for which Seller is liable under paragraph (a) of this Section 8.2Purchased Shares to the Purchaser. The Parties Purchaser shall cooperate in order to take file all necessary Tax Returns and reasonable steps to claim any such refund. Any such refund received by a Party for the account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made documentation with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X such Transfer Taxes, and the Seller shall be treated cooperate with the Purchaser with respect thereto and, if required by the parties on their Applicable Law, execute Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2related thereto.
Appears in 1 contract
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller Buyer shall be liable for, shall cause the payment of and shall indemnify and hold BuyerSeller Indemnitees against, the Buying Parties and the Acquired Entities harmless from, all Taxes arising or resulting from (i) the conduct of the Business or the ownership of the Purchased Assets for taxable periods or portions thereof beginning after the Closing Date or (ii) any transaction relating to the Business or the Purchased Assets that Buyer or any of its Affiliates causes to occur on or after the Closing Date (excluding, subject to Section 12.23.7, any Taxes caused by or resulting from the sale of the Stock Business and the Purchased Assets to Buyer and the assumption of the Assumed Liabilities by Buyer pursuant to this Agreement).
(including all Taxes arising b) Seller shall be liable for and agrees to indemnify, defend and hold Buyer Indemnitees harmless from (i) any Tax imposed on any Acquired Aether Entity if and to the Section 338(h)(10) Electionsextent that such Tax arises in respect of a taxable period ended on or before the Closing (a “Tax Indemnity Period”), (ii) any Income Taxes imposed Tax that constitutes a lien or Encumbrance on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior Purchased Assets if and to the Closing Dateextent that such Tax arises in respect of a Tax Indemnity Period, (iii) any Income Taxes imposed on Tax or incurred by other Losses resulting from the Acquired Entities inaccuracy or breach of any representation or warranty set forth in Section 4.14 or the breach of any covenants set forth in Section 6.3(h), and (or iv) any Group with respect to the taxable items costs and expenses (including, without limitation, reasonable expenses of investigation and attorneys’ fees and expenses) arising out of the Acquired Entitiesimposition 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 any a taxable period (the “Pre-Closing Period”) ending on or before the Closing Date 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 the Purchased Assets to Buyer and the assumption of the Assumed Liabilities by Buyer pursuant to this Agreement shall be deemed to arise in respect of a Tax Indemnity Period.
(or the portion, determined as described in paragraph c) For purposes of subsections (a) and (b) of this Section 8.29.1, 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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Liability for Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis Taxes shall be apportioned to between Seller and Buyer (A) in the Pre-Closing Period ratably case of Taxes other than income, sales and use and withholding taxes, on a per diem basis and that any Income Taxes resulting from making (B) in the Section 338(h)(10) Elections shall be apportioned 100% to case of income, sales and use and withholding taxes, as determined as though the Pre-Straddle Period consisted of two taxable years or periods, one which ended on the Closing Period).
(c) Seller Date and Buyer will, to the extent permitted by applicable Law, elect with other which began at the relevant taxing authorities to close all taxable periods beginning of the Acquired Entities as of the close of business on day following the Closing Date.
(d) Buyer agrees to shall pay to Seller the amounts received by Buyer or any refund received after of its Affiliates of any refund, abatement or credit of (A) Taxes which are attributable to the conduct of the Business or the ownership of the Purchased Assets on or prior to the Closing Date and (B) any other Tax Assets. In the case of any Straddle Period, Buyer shall pay to Seller the amount received by Buyer, the Buying Parties Buyer or any of the Acquired Entities, in respect its Affiliates of any Income refund, abatement or credit of Taxes for which Seller is 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 that would have been made had the account of Taxable Period ended on the other Party shall be paid to such other Party within thirty (30) days after such refund is receivedClosing Date.
(e) Seller and Buyer agree that any payment made with respect Any assessment or other Claim by a Governmental Authority seeking to Taxes pursuant to this enforce or collect a Tax, Losses or Other Costs described in Section 8.2 or as an indemnity under Article X 9.1 shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply subject to the provisions of Section 8.4, 8.5, 8.6, 8.8 and 8.9 of this Agreement to the extent that Section 8.26.3(h)(iv) does not apply to such assessment or Claim.
(f) For the avoidance of doubt, notwithstanding any other contrary provisions of this Agreement, Seller shall not be liable for any Taxes or related Losses to the extent such Taxes or related Losses have been included as a liability in calculating the Closing Net Working Capital, or such Taxes or Losses are included in Assumed Liabilities.
Appears in 1 contract
Samples: Purchase Agreement (Telecommunication Systems Inc /Fa/)
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller Buyer shall be liable for, shall cause the payment of and shall indemnify and hold BuyerSeller Indemnitees against, the Buying Parties and the Acquired Entities harmless from, all Taxes arising or resulting from (i) the conduct of the Business or the ownership of the Purchased Assets for taxable periods or portions thereof beginning after the Closing Date or (ii) any transaction relating to the Business or the Purchased Assets that Buyer or any of its Affiliates causes to occur on or after the Closing Date (excluding, subject to Section 12.23.7, any Taxes caused by or resulting from the sale of the Stock Business and the Purchased Assets to Buyer and the assumption of the Assumed Liabilities by Buyer pursuant to this Agreement).
(including all Taxes arising b) Seller shall be liable for and agrees to indemnify, defend and hold Buyer Indemnitees harmless from (i) any Tax that constitutes a lien or Encumbrance on the Section 338(h)(10) ElectionsPurchased Assets if and to the extent that such Tax arises in respect of a taxable period ended on or before Closing (a "Tax Indemnity Period"), (ii) any Income Taxes imposed on Tax or incurred by other Losses resulting from the Acquired Entities inaccuracy or breach of any representation or warranty set forth in Section 4.14 or the breach of any covenants set forth in Section 6.3(h), and (iii) any costs and expenses (including, without limitation, reasonable expenses of investigation and attorneys' fees and expenses) arising out of the inclusion imposition or assessment of the Acquired Entities any Tax, Losses or other costs described in any combinedclause (i), consolidated, unitary (ii) or similar group (a “Group”) prior to the Closing Date, (iii) ("Other Costs"), and the filing of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) Returns for any a taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (or Date, including those incurred in the portion, determined as described in paragraph (b) contest of this Section 8.2, good faith of any such Income Taxes for any taxable period beginning on imposition, assessment or before assertion. Any Tax imposed as a result of the sale of the Business and ending after the Closing Date which is allocable Purchased Assets to Buyer and the portion assumption of such period occurring on or before the Closing Date (the “Straddle Period”)) except Assumed Liabilities by Buyer pursuant to the extent that such Income Taxes (x) this Agreement shall be deemed to 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 of any accounting period or accounting practice of an Acquired Entity, or (z) are attributable to the unreasonable default or delay in respect of a Buying Party or an Acquired Entity after Closing, and (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Tax Indemnity Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Buyer shall pay to Seller and the amounts received by Buyer willor any of its Affiliates of any refund, abatement or credit of (i) Taxes which are attributable to the extent permitted by applicable Law, elect with the relevant taxing authorities to close all taxable periods conduct of the Acquired Entities as Business or the ownership of the close of business Purchased Assets on or prior to the Closing DateDate and (ii) any other Tax Assets.
(d) Buyer agrees Any assessment or other Claim by a Governmental Authority seeking to pay enforce or collect a Tax, Losses or Other Costs described in Section 9.1 shall be subject to Seller any refund received after the Closing Date by Buyerprovisions of Section 8.4, the Buying Parties or any of the Acquired Entities8.5, in respect of any Income Taxes for which Seller is liable under paragraph (a) 8.6, 8.7, 8.8 and 8.9 of this Agreement to the extent that 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 account of the other Party shall be paid 6.3(h) does not apply to such other Party within thirty (30) days after such refund is receivedassessment or Claim.
(e) Seller and Buyer agree that For the avoidance of doubt, notwithstanding any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the other contrary provisions of this Section 8.2Agreement, Seller shall not be liable for any Taxes or related Losses to the extent such Taxes or related Losses have been included as a liability in calculating the Closing Net Assets, or such Taxes or Losses are included in Assumed Liabilities.
Appears in 1 contract
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller Parent shall be liable for, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties (subject to Section 8.1(g)) and the Acquired Entities harmless from, (i) subject to Section 12.213.2, any Taxes incurred by Parent or a member of the Parent Affiliated Group caused by or resulting from the sale of Transactions and the Stock (including all Taxes arising from the Section 338(h)(10) Elections)Second Merger, (ii) subject to Section 13.2, any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (or the portion, determined as described in paragraph (bc) of this Section 8.28.1, 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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (x) arise from or are increased by transactions by the Acquired Entities outside the ordinary course of business after the Closing, Closing or (y) arise from or are increased by a change after Closing 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 (iv) any attorneys’ fees or other costs incurred by Buyer the Buying Parties or the Acquired Entities in connection with obtaining any payment from Seller Parent due under this paragraph (a) of Section 8.28.1.
(b) Whenever it 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 necessary for purposes of not liable under paragraph (a) of this Section 8.2 to determine the portion of 8.1 and (ii) any Income Taxes imposed on attorneys’ fees or other costs incurred by Parent in connection with any payment from the Acquired Entities Buying Parties under this paragraph (or any Groupb) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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)8.1.
(c) Seller For purposes of this Agreement, in determining the Straddle Period allocation of Taxes not based on or measured by income or receipts, the amount of Taxes attributable to a portion of the Straddle Period shall be deemed to be the amount of such Taxes for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the portion of the Straddle Period and Buyer the denominator of which is the total number of days in such Straddle Period, and in determining the Straddle Period allocation of Taxes based on or measured by income or receipts, the amount of Taxes attributable to a portion of the Straddle Period shall be determined as though the taxable period ended as of the close of business on the Closing Date.
(d) Parent and the Buying Parties will, to the 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.
(de) Buyer agrees The Buying Parties agree to pay to Seller Parent any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller Parent is liable under paragraph (a) of this Section 8.28.1 (including any 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 Returns filed for Pre-Closing Tax Periods to the extent such amended Tax Returns conform the Income Tax treatment to the treatment of items changed by the Parent’s contemplated earnings restatement), except to the extent such refund is shown as an asset for purposes of calculating Closing Working Capital Value. Parent agrees to pay to the Buying Parties any refund received by Parent in respect of any Taxes for which the Buying Parties are liable under paragraph (b) of this Section 8.1. The Parties parties shall cooperate in order to take all necessary and reasonable steps to claim any such refund, including electing to carry back net operating losses realized with respect to Pre-Closing Periods where permitted under applicable Law. Any such refund received by a Party party for the account of the other Party party shall be paid to such other Party party within thirty (30) days after such refund is received.
(ef) Seller Parent and Buyer the Buying Parties agree that any payment made with respect to Taxes pursuant to this Section 8.2 8.1 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b.
(g) shall not apply Any indemnity with respect to the provisions of this Section 8.2U.K. Companies shall be paid to Buyer Sub rather than to the U.K. Companies directly.
Appears in 1 contract
Samples: Subscription Agreement and Plan of Merger (Proquest Co)
Liability for Taxes. (a) 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, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless from, (i) subject Seller shall indemnify Buyer and its Affiliates, including the Transferred Entities other than BCL for all Losses that arise from or relate or are attributable to Section 12.2(A) Taxes of, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed on or incurred by with respect to the Acquired Transferred Entities arising out (for the avoidance of doubt, including BCL) and the Transferred Assets which have arisen or may arise wholly in respect or in consequence of any Event occurring or deemed to occur on or before Closing (including, without prejudice to the foregoing, the execution or performance of the inclusion of the Acquired Entities Agreement) or any income, profits or gains earned, accrued or received in any combined, consolidated, unitary taxable period ending on or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by Date and the Acquired Entities (or any Group with respect to portion through the taxable items end of the Acquired Entities) for Closing Date of any taxable period that includes (but does not end on) the Closing Date (a “Pre-Closing Period”), to the extent such Taxes (i) ending are not reflected on or reserved for in the calculation of Final Net Book Value, and (ii) do not arise, and are not increased, as a result of a voluntary transaction, action or omission carried out or effected by Buyer or a Transferred Entity, or any member of Buyer’s Group, at any time after Closing, other than any such transaction, action or omission carried out or effected (u) with respect to the filing of any Tax Return for any Tax period that begins on or after and ends after the Closing Date, (v) with the consent of Seller, such consent not to be unreasonably withheld, conditioned or delayed, (w) where such transaction, action or omission is required by applicable Law, (x) under a legally binding commitment of a Transferred Entity created on or before Closing or (y) pursuant to any obligation in any of the Transaction Documents or (z) in the ordinary course of business of a Transferred Entity, as carried on at Closing, (B) Transfer Taxes for which Seller is liable pursuant to this Section 5.5(a), (C) Taxes imposed on Seller or any member (other than a Transferred Entity) of a consolidated, affiliated, combined, unitary or similar group with which Seller or any of its Affiliates files a consolidated, affiliated, combined, unitary or similar Tax Return for any tax period, (D) Taxes imposed on or payable by any Transferred Entity under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) by reason of such Transferred Entity being included in any consolidated, affiliated, combined, unitary or similar group at any time on or before the Closing Date Date, (E) Taxes imposed as a result of or attributable to any Section 338(h)(10) Election, (F) any breach of a representation made in Section 3.8 or (G) Taxes suffered by any Transferred Entity arising in consequence of the portionfailure by another company (not being any of the Transferred Entities or any member of the Buyer’s Group) to discharge taxation within a specified time or otherwise, determined and for which the relevant Transferred Entity is liable as a result of having at any time prior to or at Closing been a member of the same group as that company for the purposes of any Taxes or as a result of having at any time prior to or at Closing controlled or been controlled by another Person (not being any of the Transferred Entities or any member of the Buyer’s Group) (construing “control” in accordance with Sections 707 and 708 of the Corporation Taxes Act 2010).
(ii) Buyer shall be liable for and indemnify Seller for all Taxes of the Transferred Entities and the Transferred Assets not described in paragraph (bSection 5.5(a)(i) of this Section 8.2, of and any such Income Transfer Taxes for which Buyer is liable pursuant to Section 5.5(g).
(iii) In the case of any taxable period beginning that includes, but does not end on or before and ending after the Closing Date which is allocable to the portion of such period occurring on or before the Closing Date (the a “Straddle Period”)) except to , the extent that such Income amount of any Taxes (x) arise from based on or are increased measured by transactions by income, receipts or other measurable basis of the Acquired Transferred Entities outside or the ordinary course Transferred Assets shall be determined based on an interim closing of business after the books as of the Closing, or (y) arise from or are increased by a change after Closing other than VAT 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 ClosingSeller’s VAT Group, and (iv) any attorneys’ fees or the amount of property, ad valorem and other costs incurred by Buyer Taxes of the Transferred Entities or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes Transferred Assets imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions periodic basis for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned relates to the Pre-Closing Period ratably on a per diem basis and that any Income Taxes resulting from making the Section 338(h)(10) Elections shall be apportioned 100% deemed to be the amount of such Tax for the entire period multiplied by a fraction, the numerator of which is the number of days in the taxable period ending at the Closing and the denominator of which is the number of days in such Straddle Period and VAT of the Seller’s VAT Group that relates to the Pre-Closing Period).
(c) Seller and Buyer willPeriod shall be determined as though the Closing were the end of a Prescribed Accounting Period of the Seller’s VAT Group; provided that, for the avoidance of doubt any degrouping or other exit Tax charges that arise to the extent permitted by applicable Law, elect a Transferred Entity as a result of or in connection with the relevant taxing authorities to close all taxable periods execution of this Agreement or the completion of the Acquired Entities as of the close of business on the Closing Date.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X Transaction shall be treated as being Taxes that arise in a Pre-Closing Period, including any deferred items triggered into income by the parties on their Tax Returns as an adjustment Treasury Regulations Section 1.1502-13, any excess loss account taken into income under Treasury Regulations Section 1.1502-19 and any income attributable to the Purchase Price. The indemnification limitations in any Section 10.1(b) shall not apply to the provisions of this Section 8.2.338(h)(10)
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jefferies Group Inc /De/)
Liability for Taxes. (a) Except to as otherwise provided in Section 11.1(c) hereof, the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller shall be liable for, shall cause the payment of pay and shall indemnify and hold Buyer, the Buying Parties Buyer and the Acquired Entities Company harmless from, against all claims for Taxes and reasonable costs and expenses relating thereto of the Company or the Subsidiaries (i) subject for any taxable period or portion thereof ending after the Acquisition Date, but on or before the Closing Date, due or payable with respect to Section 12.2the operations, any Taxes caused by assets or resulting from the sale business of the Stock Seller or its Affiliates (including all Taxes arising from the Section 338(h)(10Company) Elections), (ii) any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to before the Closing Date, (ii) relating to the deductibility of costs and expenses paid by the Company in connection with the acquisition of the Company by the Seller, and (iii) any Income Taxes imposed on or incurred by for liability of the Acquired Entities (Company and the Subsidiaries pursuant to Treasury Regulations Section 1.1502-6 or any Group with respect analogous state, local or foreign law or regulation (excluding Taxes attributable to the taxable items activities of the Acquired EntitiesCompany or its Subsidiaries) by reason of the Company or the Subsidiaries having been a member of any combined, consolidated or unitary group as to which the Seller or News Publishing Australia Limited or their Affiliates (other than the Company or its Subsidiaries) was the common parent (each, a "Tax Claim").
(b) The Buyer shall be liable for, shall pay and shall indemnify and hold the Seller harmless against (i) any and all Taxes of the Company for any taxable period (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 portion thereof after the Closing Date which is allocable to the portion of such period occurring on or before the Closing Date Date; and (the “Straddle Period”)ii) except to the extent that such Income any and all Taxes (x) arise from or are increased by transactions by the Acquired Entities outside not incurred in the ordinary course of business attributable to the acts or omissions of the Buyer, the Buyer's Affiliates or the Company occurring on the Closing Date but after the Closing, or (y) arise from or are increased by a change after Closing 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Notwithstanding any provision to the contrary contained in this Agreement, the Seller shall be required to indemnify and hold the Buyer will, and the Company harmless under Sections 11.1(a)(i) and 11.1(a)(ii) hereof only to the extent permitted that the aggregate of such claims exceeds $250,000. Notwithstanding the foregoing, in no event shall the aggregate amount required to be paid by applicable Law, elect with the relevant taxing authorities Seller to close all taxable periods the Buyer or the Company or its Subsidiaries pursuant to Sections 11.1(a)(i) and 11.1(a)(ii) hereof exceed five percent (5%) of the Acquired Entities as of the close of business on the Closing DatePurchase Price paid hereunder.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.
Appears in 1 contract
Liability for Taxes. (a) Except to as set forth in subparagraph (b) below, the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller ACME Entities shall be liable forfor and pay, shall cause the payment of and pursuant to Article X shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless fromeach Buyer Group Member against, (iA) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the imposed on any Company, or for which any Company may otherwise be liable, as a result of having been a member of a Company Group (including, without limitation, Taxes for which any Company may be liable pursuant to Treasury Regulation Section 338(h)(10) Elections1.1502-6 or similar provisions of state, local or foreign law as a result of having been a member of a Company Group), (iiB) any Income all Taxes imposed on any Company, or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in for which any combinedCompany may otherwise be liable, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable year or period (the “Pre-Closing Period”) ending 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 (including, without limitation, any obligations to contribute to the payment of a Tax determined on a consolidated, combined or unitary basis with respect to a Company Group and any Taxes resulting from a Company ceasing to be a member of a Company Group, (C) any interest or penalties that are due to the portionfailure (through no fault of Buyer) of any ACME Group Member to timely prepare, determined assist in preparation or file or cause to be filed any Tax Return required to be filed with respect to any Straddle Period, and (D) Taxes arising as described a result of any breach of a warranty or covenant of the ACME Entities under this Agreement.
(b) Buyer shall be liable for and pay, and pursuant to Article X shall indemnify each ACME Group Member against, (A) all Taxes imposed on any 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, other than Taxes for which such Company is liable as a result of having been a member of a Company Group, (B) any Taxes to the extent such Taxes were taken into account in paragraph making the computations required by Section 3.6, (C) Taxes imposed on any Company resulting from actions, decisions or elections undertaken or made by any Buyer Group Member after the Closing, or any settlements effected by Buyer if Buyer has agreed to forego indemnification as required by Section 11.3(b), (D) any interest or penalties that are due to the failure (through no fault of the ACME Entities) of any Buyer Group Member to timely prepare, assist in preparation or file or cause to be filed any Tax Return required to be filed after the Closing Date, (E) Taxes arising as a result of any other breach of a warranty or covenant of Buyer under this Agreement and (F) Taxes that arise or are increased as a result of any change after the Closing Date in the bases, methods, or policies of accounting adopted by Company, provided, that the previous bases, methods, or policies of accounting used by the Company were in accordance with applicable Tax law.
(c) For purposes of paragraphs (a) and (b) of this Section 8.211.1, 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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion liability for Taxes of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) Company for a Straddle Period, the determination of the Taxes of the Company for the portion of the Straddle Period ending on and including, and the portion of the Straddle Period beginning after, the Closing Date shall be made, determined by assuming that the Pre-Closing Straddle Period constitutes a separate consisted of two taxable period years or periods, one which ended at the close of the Acquired Entities Closing Date and the other which began at the beginning of the day following the Closing Date, and subject to paragraph (d) of this Section 11.1, 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 taking into account assuming that the actual taxable events occurring during such period (except books of the Company were closed at the close of the Closing Date; provided, however, that exemptions, allowances and or deductions for a Straddle Period that are calculated on an annual or periodic basis basis, such as the deduction for depreciation, shall be apportioned to the Pre-Closing Period ratably between such two taxable years or periods on a per 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).
(c) Seller and Buyer will, to the 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 Datedaily basis.
(d) Buyer agrees Except as provided herein, the ACME Entities and their Affiliates shall be entitled to pay to Seller any refund received after of Taxes of any Company pertaining to taxable periods (or portions thereof) ending prior to or on the Closing Date by Buyer, Date. If the Buying Parties ACME Entities or any Affiliate thereof becomes entitled to a refund or credit of the Acquired Entities, in respect of any Income Taxes for which Seller is the ACME Entities are liable under paragraph (a) of this Section 8.2. The Parties shall cooperate in order to take all necessary indemnify any Buyer Group Member, and reasonable steps to claim any such refund. Any such refund received 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 any Company, the ACME Entities or such Affiliate shall promptly pay to Buyer the amount of such refund or credit together with any interest (net of Taxes) thereon. Buyer will pay to the ACME Entities an amount equal to any savings actually realized by a Party for the account any Buyer Group Member in respect of the net operating loss carryforwards, and credit carryforwards, of any Company existing as of the Closing Date. Buyer will make such remittance promptly after such savings is realized by Buyer or any of its Affiliates. In the event that any refund or credit of Taxes for which a payment has been made to Buyer or to the ACME Entities is subsequently reduced or disallowed, Buyer or the ACME Entities shall indemnify and hold harmless the ACME Entities or Buyer, respectively, for any Tax assessed by reason of the reduction or disallowance. If any adjustment is made to any Tax Return of any Company for a period for which the ACME Entities are liable under subparagraph (a) to indemnify any Buyer Group Member, and which results in an indemnification payment by the ACME Entities, and which also results in any deduction, exclusion from income, addition to tax basis or other Party allowance (a "Tax Benefit") to the Company or any of its Affiliates in a taxable period (or portion thereof) beginning after the Closing Date, the Company or Buyer shall be paid pay to the ACME Entities the amount of the tax reduction attributable to such other Party within thirty (30) days after Tax Benefit at such refund is received.
(e) Seller time or times as, and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) extent that, such Tax Benefit is realized; provided, however, that this sentence shall not apply to any Tax Benefit (i) arising from an adjustment to a Tax Return of any Company which also results in a Tax Benefit (for example, through an increase in stock basis) to any of the provisions of this Section 8.2ACME Entities or Affiliates or (ii) recognized after the second full taxable year following the taxable year that includes the Closing Date.
Appears in 1 contract
Liability for Taxes. (ai) Except To the extent provided in Section 8.1, and pursuant to Article 8 (and subject to the extent such Taxes are accrued as a liability for purposes of calculating limitations thereof), the Closing Working Capital Value, Seller shall be liable for, shall cause the payment of HPI Indemnitors agree to and shall indemnify and hold Buyerthe Purchaser, the Buying Parties and its directors, officers, employees, Affiliates (including HPI and any of the Acquired Entities Companies if the Closing occurs), agents and assigns harmless from and against any and all Losses resulting from, based upon or arising out of, directly or indirectly: (iA) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed on or incurred by the any Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group Company (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entitiesother than Sioux City) for any taxable year or period (the “Pre-Closing Period”) ending 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, (B) Taxes imposed on or related to HEC for any taxable year or period and (C) Taxes imposed on any Acquired Company as a result of the HPI Redemption; provided, however, that no HPI Indemnitor shall be liable for or pay, and no HPI Indemnitor shall indemnify or hold harmless any Person from and against, (I) any Taxes taken into account as a liability or reserve (whether taken into account as a liability or reserve, as an offset to an asset, or otherwise) in determining the final Closing Working Capital of HPI, (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 or redemption of the HPI Common Stock or the portiondeemed purchase of shares of any Acquired Company or that result from the Purchaser, determined any Affiliate of the Purchaser, or the Purchaser or any Acquired 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 any Acquired Company for federal, state, local or other Tax purposes, (III) any Taxes imposed on any Acquired Company or for which any Acquired Company may otherwise be liable as a result of transactions occurring on the Closing Date that are properly allocable (based on, among other relevant factors, factors set forth in Treas. Xxx.xx. 1.1502-76(b)(1)(ii)(B)) to the portion of the Closing Date after the Closing, (it being understood and agreed that in no event shall the HPI Redemption be regarded as a transaction described in this clause (III)), (IV) Taxes imposed as a result of or in connection with (i) any dividends paid by Sioux City to HPI on or after December 31, 2001, (ii) the conversion of Principal Financial Group or Liberty Mutual Insurance Company to stock form from mutual insurance companies, or (iii) the sale of HPI's capital stock in Sioux City pursuant to an exercise by Xxxxxxxx of its rights under the Buy and Sell Agreement, dated as of March 1, 1992, (V) any Taxes resulting from a sale of any Acquired Company by the Purchaser or any Affiliate of the Purchaser (Taxes described in this proviso, hereinafter "Excluded Taxes"). Except to the extent taken into account as an asset (whether taken into account as an asset, as an offset to a liability or reserve, or otherwise) in determining the final Closing Working Capital of HPI, or except as provided in the last sentence of paragraph (ba)(ii) of this Section 6.13, the HPI Stockholders shall be entitled to any refund of (or credit for) Taxes for which any HPI Indemnitor is liable under this Agreement (including, without limitation, any refund of, or credit for, Taxes of HEC or any Acquired Company due to the overpayment of such Taxes prior to the Closing Date).
(ii) To the extent provided in Section 8.2, and pursuant to Article 8 (and subject to the limitations thereof), the Purchaser agrees to indemnify and hold the HPI Stockholders and their respective directors, officers, employees, Affiliates, agents and assigns harmless (after the Closing) from and against any and all Losses of the HPI Stockholders resulting from, based upon or arising out of, directly or indirectly: (A) Taxes imposed on any such Income Taxes Acquired Company (other than Sioux City) for any taxable year or period beginning on or before and ending that begins after the Closing Date which is allocable and, with respect to any Straddle Period, the portion of such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Seller and Buyer will, to the 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.
(d) Buyer agrees to pay to Seller any refund received beginning after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is liable under paragraph and (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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.B)
Appears in 1 contract
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller MPCI shall be liable for, shall cause the payment of and shall indemnify and hold BuyerMPLX, and any other of MPLX’s Affiliates harmless from any Taxes, together with any costs, expenses, losses or damages, including reasonable expenses of investigation and attorneys’ and accountants’ fees and expenses, arising out of or incident to the Buying Parties and the Acquired Entities harmless fromdetermination, assessment or collection of such Taxes (“Tax Losses”), (i) subject imposed on or incurred by Xxxxxx, Woodhaven or Terminals by reason of Treasury Regulations Section 1.1502-6 or any analogous state, local or foreign law or regulation which is attributable to Section 12.2having been a member of any consolidated, any Taxes caused by combined or resulting from unitary group on or prior to and including the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), Closing Date; (ii) any Income Tax Losses (other than Tax Losses described in clause (i) above) imposed on or incurred by or with respect to Xxxxxx, Woodhaven or Terminals or the Assets with respect to the period prior to and including the Closing Date; or (iii) attributable to a breach by MPCI of any representation (other than those contained in Section 5.19, to which Article 4 shall be applicable), warranty or covenant with respect to Taxes in this Agreement; provided, however, that MPCI’s liability for Tax Losses hereunder shall be reduced by the amount of any Taxes included in such Tax Losses to the extent reflected in the Current Liabilities of Xxxxxx, Woodhaven or Terminals as of the Closing Date.
(b) MPLX shall be liable for, and shall indemnify and hold MPCI, Logistics, MPLX GP and each of their respective Affiliates (other than MPLX and its subsidiaries) harmless from, any Tax Losses (i) imposed on or incurred by or with respect to Xxxxxx, Woodhaven or Terminals or the Assets with respect to the period after the Closing Date, or (ii) attributable to a breach by MPLX of any covenant with respect to Taxes in this Agreement.
(c) Whenever it is necessary for purposes of this Article 12 to determine the amount of any Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending on Xxxxxx, Woodhaven or before the Closing Date (Terminals or the portion, determined as described in paragraph (b) of this Section 8.2, of any such Income Taxes Assets for any a taxable period beginning on or before and ending after the Closing Date which is allocable to the portion of such period occurring on or before prior to and including the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle PeriodDate, the determination shall be made, by assuming that in the Pre-Closing Period constitutes a separate taxable period case of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptionsproperty or ad valorem taxes or franchise taxes, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per diem basis and that any Income Taxes resulting from making and, in the case of other Taxes, by the closing of the books method pursuant to Section 338(h)(10) Elections shall be apportioned 100% 706 of the Code. Notwithstanding anything to the Pre-Closing Period).
(c) Seller and Buyer willcontrary herein, to the 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.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties franchise tax paid or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made payable with respect to Taxes pursuant to this Section 8.2 Xxxxxx, Woodhaven or as an indemnity under Article X Terminals or the Assets shall be treated 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 parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions payment of this Section 8.2such franchise tax.
Appears in 1 contract
Samples: Membership Interests Contributions Agreement (MPLX Lp)
Liability for Taxes. (a) 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, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless from, (i) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Each Asset Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Seller and Buyer willand, to the extent permitted by applicable Lawany Asset Seller is unable to pay, elect with the relevant taxing authorities to close Seller, shall be liable for and pay any and all taxable periods of Taxes levied or imposed upon, in connection with, or attributable to, the Acquired Entities as of Assets, that accrue or otherwise relate to 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 (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) Buyer agrees such Tax liability is a direct result of an action or omission by Seller or its Affiliates before the Closing at the express written direction of the Purchaser. Purchaser shall be liable for and pay (x) any and all Taxes levied or imposed on, in connection with or attributable to pay the Acquired Assets that accrue or otherwise relate to Seller any refund received taxable year or period (or portion thereof) beginning or deemed to begin after the close of business on the Closing Date by Buyer, the Buying Parties or and (y) any of the Acquired Entities, Taxes described in respect of any Income Taxes for which Seller is liable under paragraph clauses (a), (b), (c) and (d) 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received4.20(b)(i).
(eii) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated 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 close of business on the Closing Date payable by the parties on Target Entities and their Tax Returns as an adjustment Subsidiaries; provided that, Seller shall not be liable to the Purchase Priceextent that (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 at the express written direction of the Purchaser. The indemnification limitations Purchaser shall be responsible for (x) any Taxes payable by the Target Entities or any of their Subsidiaries that accrue or otherwise relate to any taxable year or period (or portion thereof) starting or deemed to start after the close of business on the Closing Date and (y) any Taxes described in Section 10.1(bclauses (a), (b), (c) shall not apply to the provisions and (d) of this Section 8.24.20(b)(ii).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Albany International Corp /De/)
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital ValueFrom and after Closing, Seller shall be liable for, shall cause the payment of and shall indemnify and hold Buyerharmless Purchaser, the Buying Parties Company Group Members, and the Acquired Entities harmless from, their Affiliates from and against (i) subject any Tax Liability of Company Group Member that is attributable to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed taxable period ending on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing DateEffective Time, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (or and the portion, determined as described in paragraph (b) of this Section 8.212.1(c), of any such Income Taxes Tax Liability for any taxable period beginning on or before prior to the Effective Time and ending after the Closing Date Effective Time which is allocable by the provisions of Section 12.1(c) to the portion of such period occurring on or prior to the Effective Time, (ii) any Non-Ordinary Course Tax Liability (iii) any Post-Completion Tax Liability but excluding in all cases any Tax Liability provided for in Section 13.3, and in each case, save to the extent that (A) provision or reserve was made in the Financial Statements dated as of the Effective Time and where such provision or reserve was taken into account in the calculation of Working Capital for the purposes of Section 3.3, (B) such Tax Liability arises or is increased as a result of any change in rates of Tax made after the Effective Time or of any change in Law (or change in interpretation of the Law) or any amendment or withdrawal of a Tax Authority’s practice or concession, or any change in accounting standards, practice or principles which is announced after the Effective Time, (C) such Tax Liability would not have arisen or would have been lower but for any act, omission or transaction carried out by or at the written request of the Purchasers after the Effective Time or any Company Group Member after the Closing, or (D) such Tax Liability relates to interest, penalties or additional amounts which are attributable to the delay or default of Purchasers or any Company Group Member after Closing.
(b) From and after Closing, Purchasers shall be liable for, and shall indemnify and hold harmless Seller and its Affiliates from and against, any Tax Liability of any Company Group Member that is attributable to any taxable period beginning after the Effective Time, and the portion, determined as described in Section 12.1(c), of any such Tax Liability for any taxable period beginning on or prior to the Effective Time and ending after the Effective Time which is allocable to the portion of such period occurring after the Effective Time but excluding any Tax Liability referred to in Section 13.3, and in each case, save to the extent that the relevant Tax Liability falls within Section 12.1(a)(ii) above, Section 12.1(a)(iii) above, or relates to interest, penalties or additional amounts which are attributable to the delay or default of Seller or any Company Group Member after Closing.
(c) Whenever it is necessary for purposes of this Agreement to determine the portion of any Tax Liability of or with respect to any Company Group Member for a taxable period beginning on or prior to and ending after the Effective Time which is allocable to the portion of such period occurring on or before the Closing Date (the “Straddle Period”)) except prior to the extent that Effective Time or to the portion of such Income period occurring at or after the Effective Time, the determination shall be made (i) in the case of property, ad valorem or similar Taxes (xwhich are not based on or measured by production), by allocating all such Taxes on a per diem basis, (ii) arise from in the case of franchise, capital or similar Taxes (which are increased not based on or measured by transactions revenue, income or profit), by allocating all such Taxes on a per diem basis, (iii) in the Acquired Entities outside the ordinary course case of business after the Closing, or (y) arise from or are increased value added taxes and customs and excise duties by a change after Closing of any accounting period or accounting practice of an Acquired Entity, or (z) are attributable references to the unreasonable default or delay of a Buying Party or an Acquired Entity after Closingsupplies actually made and received, and (iv) any attorneys’ fees or in the case of other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be madeTaxes, by assuming that the Pre-Closing Period each portion of such period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during each such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Seller and Buyer will, to the 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 Dateperiod.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes Any claim for which Seller is liable indemnification under paragraph (a) of this Section 8.2. The Parties shall cooperate 12.1 shall, except to the extent otherwise provided in order to take all necessary and reasonable steps to claim any such refund. Any such refund received by a Party for this Article 12, be resolved in accordance with the account of the other Party shall be paid to such other Party within thirty (30) days after such refund is receivedprocedures described in Section 13.6.
(e) Seller and Buyer agree that The Parties shall treat any payment made with respect to Taxes pursuant to amounts paid under this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns 12 as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply Price to the provisions of this Section 8.2extent permissible by Law.
Appears in 1 contract
Liability for Taxes. (ai) Except to the extent such Taxes are accrued reflected as a liability for purposes of calculating Current Liability in the Closing Final Net Working Capital ValueStatement, Seller the Sellers shall be liable forfor and pay, shall cause the payment of and pursuant to Article IX shall indemnify and hold Buyerharmless the Buyer from and against any and all Losses incurred by any Buyer Indemnitee in connection with or arising from (A) all Taxes imposed on the Company or any of its Subsidiaries, or for which the Buying Parties Company or any of its Subsidiaries may otherwise be 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, without limitation, Taxes for which the Company or any of its Subsidiaries may be liable pursuant to 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 the Acquired Entities harmless from, (i) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock (including all Taxes arising from the Section 338(h)(10) Elections), (ii) any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (Company or any Group with respect of its Subsidiaries ceasing to the taxable items be a member of the Acquired Entitiesany Company Group) for any taxable period (the “Pre-Closing Period”) periods ending on or before the Closing Date Date, and (B) all Taxes (other than any Taxes imposed on the Company or any of its Subsidiaries resulting from the portionSection 338(g) Election) imposed on the Company or any of its Subsidiaries, determined as described in paragraph (b) or for which the Company or any of this Section 8.2its Subsidiaries may otherwise be liable, of any such Income Taxes for any taxable year or period beginning on or before and ending after the Closing Date which is allocable to the portion of such period occurring that ends on or before the Closing 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 such Straddle Period ending on and including the Closing Date (the “Straddle Period”)) except including, without limitation, any obligations to contribute to the extent that such Income Taxes (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 of any accounting period or accounting practice of an Acquired Entity, or (z) are attributable to the unreasonable default or delay payment of a Buying Party Tax determined on a consolidated, combined or an Acquired Entity after Closing, and (iv) unitary basis with respect to any attorneys’ fees or other costs incurred Company Group). Final payment required by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2indemnification shall be treated as a Purchase Price adjustment.
(bii) Whenever For purposes of Section 7.3(a)(i), whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion liability for Taxes of any Income Taxes imposed on or incurred by the Acquired Entities (Company or any Group) 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 made, determined by assuming that the Pre-Closing Straddle Period constitutes a separate consisted of two taxable period years or periods, one which ended at the close of the Acquired Entities 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 taking into account assuming that the actual taxable events occurring during such period (except books of the Company and its Subsidiaries were closed at the close of the Closing Date; provided, however, that exemptions, allowances and allowances, deductions for a Straddle Period or Taxes that are calculated on an annual or periodic basis basis, such as the 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 Pre-Closing Period ratably on a per diem basis and that Date reflected in the Final Net Working Capital Statement attributable to Straddle Periods shall reduce any Income liability for Taxes resulting from making owed by the Section 338(h)(10) Elections shall be apportioned 100% Sellers to the Pre-Closing Period)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.
(ciii) Seller and Buyer willAll Transfer Taxes, sales Taxes, use Taxes, real estate transfer or gains Taxes, or other similar Taxes imposed on, arising out of or otherwise relating to (i) the sale of the Shares by the Sellers to the extent permitted by applicable LawBuyer and (ii) the Transfer and Redemption, 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.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be borne and paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2Sellers.
Appears in 1 contract
Liability for Taxes. (a) 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, shall cause the payment of and shall indemnify and hold Buyer, the Buying Parties and the Acquired Entities harmless from, (i) subject to Section 12.2The Seller Group Members shall hold harmless, indemnify and defend each of the Buyer Indemnitees from and against, and shall compensate and reimburse each of the Buyer Indemnitees for, any Taxes caused Damages that are directly or indirectly suffered or incurred at any time by or resulting from the sale any of the Stock Buyer Indemnitees or to which any of the Buyer Indemnitees may otherwise directly or indirectly become subject at any time (including all Taxes arising regardless of whether or not such Damages relate to any third party claim) and that arise directly or indirectly from the Section 338(h)(10or as a result of: (A) Elections), (ii) any Income Taxes imposed on any Group Company, or incurred by for which any Group Company may otherwise be liable, as a result of having been a member of a Company Group, (B) Taxes imposed on a Group Company, or for which a Group Company may otherwise be liable, for any taxable year or period that ends on or before the Acquired Entities arising out Closing Date and, with respect to any Straddle Period, the portion of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to such Straddle Period ending on and including the Closing Date, (iiiC) any Income Taxes imposed on or incurred by a Buyer Group Member as a result of such Buyer Group Member being a United States shareholder (within the Acquired Entities 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 any 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 taxable items portion of such Straddle Period ending on and including the Acquired EntitiesClosing Date and (D) Taxes imposed on a Seller for any taxable year or period and (E) the cost and expense (including third party costs and expenses) of preparing Tax Returns for which Buyer is responsible under Section 11.01(b) to the extent such Tax Returns relate to tax years or periods ending on or prior to the Closing Date or for which the Seller Group Members were responsible under Section 11.01(b).
(ii) For purposes of this Agreement, whenever it is necessary to determine the liability for Taxes of 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 “Pre-closing of the books basis” by assuming that the books of the Group Company were closed at the close of the Closing PeriodDate; 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 based solely on capital, and depreciation deductions, shall be apportioned between such two (2) taxable years or periods on a daily basis. In determining whether a Property Tax is attributable to a Tax period ending on or before the Closing Date or a Straddle Period (or portion thereof), any Property Tax shall be deemed a Property Tax attributable to the portiontaxable period specified on the relevant Property Tax xxxx. For purposes of Section 11.01(a)(i), determined as described in paragraph whenever it is necessary to determine the liability for Taxes of a United States shareholder (bwithin the meaning of Section 951(b) of this the Code) of a controlled foreign corporation (within the meaning of Section 8.2, 957 of any the Code) attributable to amounts included in the income of such Income Taxes United States shareholder under Section 951 of the Code for any the taxable year or period beginning of such controlled foreign corporation that begins on or before and ending ends after the Closing Date which is allocable to the portion of such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle PeriodDate, the determination of liability for any such Taxes shall be made, made by assuming that the Pre-Closing Period constitutes a separate taxable year or period of the Acquired Entities and by taking into account the actual controlled foreign corporation consisted of two (2) taxable events occurring during such period (except that exemptionsyears or periods, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Seller and Buyer will, to the extent permitted by applicable Law, elect with the relevant taxing authorities to close all taxable periods of the Acquired Entities as of one which ended at the close of business the Closing Date and the other of which began at the beginning of the day following the Closing Date and 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 (dwithin the meaning of Section 952 of the Code) Buyer agrees of the controlled foreign corporation shall be determined without regard to pay to Seller any refund received after Section 952(c) of the Closing Date by BuyerCode. For the avoidance of doubt, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations set forth in Section 10.1(b) 9.03 shall not apply to the provisions of indemnification obligations under this Section 8.211.01(a).
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Samples: Stock Purchase Agreement (Surgalign Holdings, Inc.)
Liability for Taxes. (ai) Except Notwithstanding any disclosure contained in the Company Disclosure Schedules, except to the extent such Taxes are accrued taken into account as a liability for purposes in calculation of calculating Net Working Capital, the Closing Working Capital Value, Seller Members shall be severally, and not jointly, liable forfor and pay, shall cause the payment of and shall indemnify and hold Buyerharmless the Parent Indemnified Persons from and against, any and all Pre-Closing Taxes (it being understood that the sole source of recovery from the Members by Parent Indemnified Persons for Pre-Closing Taxes shall be the Escrow Amount held pursuant to the Escrow Agreement). If any Pre-Closing Tax is indemnified under an agreement or insurance policy described in the definition of Pre-Closing Fleetwood Tax Amounts, the Buying Parties Parent Indemnified Persons shall first pursue that remedy and the Acquired Entities harmless from, (i) subject shall be entitled to Section 12.2, any Taxes caused by or resulting receive indemnification from the sale 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 Stock Escrow Amount equal to such Pre-Closing Tax (including all Taxes arising from to the Section 338(h)(10extent available) Elections), shall continue to be held in the Escrow Account to provide for indemnification in the event such remedy ultimately proves insufficient.
(ii) In the case of any Income Taxes imposed on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities (or any Group with respect to the taxable items of the Acquired Entities) for any taxable Tax period (the “Pre-Closing Period”) ending that begins on or before and ends after 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 such period occurring on or before the Closing Date (the a “Straddle Period”), (i) except to the extent that such Income Taxes (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 amount of any accounting period Taxes of the Company or accounting practice of an Acquired Entityits Subsidiaries based upon or measured by receipts, profits, wages, capital, net worth, net income or (z) are attributable to the unreasonable default or delay of a Buying Party or an Acquired Entity after Closing, and (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever it is necessary gain for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Tax Period constitutes a separate taxable period will be determined based on an interim closing of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per 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).
(c) Seller and Buyer will, to the extent permitted by applicable Law, elect with the relevant taxing authorities to close all taxable periods of the Acquired Entities books as of the close of business on the Closing Date.
Date (dand, 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); provided, however, that exemptions, allowances or deductions that are calculated on an annual basis (such as the deductions for depreciation and real estate taxes) Buyer agrees will be apportioned between such two taxable periods on a daily basis and (ii) the amount of other Taxes of the Company 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 pay to Seller any refund received 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 Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is liable under paragraph (a) of this Section 8.2. The Parties shall cooperate in order will not be attributable to take all necessary and reasonable steps to claim any such refund. Any such refund received by a Party for the account of the other Party shall be paid to such other Party within thirty (30) days after such refund is receivedPre-Closing Tax Period.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.
Appears in 1 contract
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating the Closing Working Capital Value, Seller Buyer shall be liable for, shall cause the payment of and shall indemnify and hold BuyerSeller Indemnitees against, the Buying Parties and the Acquired Entities harmless from, all Taxes arising or resulting from (i) the conduct of the Business or the ownership of the Purchased Assets for taxable periods or portions thereof beginning after the Closing Date or (ii) any transaction relating to the Business or the Purchased Assets that Buyer or any of its Affiliates causes to occur on or after the Closing Date (excluding, subject to Section 12.23.7, any Taxes caused by or resulting from the sale of the Stock Business and the Purchased Assets to Buyer and the assumption of the Assumed Liabilities by Buyer pursuant to this Agreement).
(including all Taxes arising b) Seller shall be liable for and agrees to indemnify, defend and hold Buyer Indemnitees harmless from (i) any Tax imposed on any Acquired Aether Entity if and to the Section 338(h)(10) Electionsextent that such Tax arises in respect of a taxable period ended on or before the Closing (a "TAX INDEMNITY PERIOD"), (ii) any Income Taxes imposed Tax that constitutes a lien or Encumbrance on or incurred by the Acquired Entities arising out of the inclusion of the Acquired Entities in any combined, consolidated, unitary or similar group (a “Group”) prior Purchased Assets if and to the Closing Dateextent that such Tax arises in respect of a Tax Indemnity Period, (iii) any Income Taxes imposed on Tax or incurred by other Losses resulting from the Acquired Entities inaccuracy or breach of any representation or warranty set forth in Section 4.14 or the breach of any covenants set forth in Section 6.3(h), and (or iv) any Group with respect to the taxable items costs and expenses (including, without limitation, reasonable expenses of investigation and attorneys' fees and expenses) arising out of the Acquired Entitiesimposition 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 any a taxable period (the “Pre-Closing Period”) ending on or before the Closing Date 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 the Purchased Assets to Buyer and the assumption of the Assumed Liabilities by Buyer pursuant to this Agreement shall be deemed to arise in respect of a Tax Indemnity Period.
(or the portion, determined as described in paragraph c) For purposes of subsections (a) and (b) of this Section 8.29.1, 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 such period occurring on or before the Closing Date (the “Straddle Period”)) except to the extent that such Income Taxes (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 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 (iv) any attorneys’ fees or other costs incurred by Buyer or the Acquired Entities in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.2.
(b) Whenever whenever it is necessary for purposes of paragraph (a) of this Section 8.2 to determine the portion of any Income Liability for Taxes imposed on or incurred by the Acquired Entities (or any Group) for a Straddle Period, the determination shall be made, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis Taxes shall be apportioned to between Seller and Buyer (A) in the Pre-Closing Period ratably case of Taxes other than income, sales and use and withholding taxes, on a per diem basis and that any Income Taxes resulting from making (B) in the Section 338(h)(10) Elections shall be apportioned 100% to case of income, sales and use and withholding taxes, as determined as though the Pre-Straddle Period consisted of two taxable years or periods, one which ended on the Closing Period).
(c) Seller Date and Buyer will, to the extent permitted by applicable Law, elect with other which began at the relevant taxing authorities to close all taxable periods beginning of the Acquired Entities as of the close of business on day following the Closing Date.
(d) Buyer agrees to shall pay to Seller the amounts received by Buyer or any refund received after of its Affiliates of any refund, abatement or credit of (A) Taxes which are attributable to the conduct of the Business or the ownership of the Purchased Assets on or prior to the Closing Date and (B) any other Tax Assets. In the case of any Straddle Period, Buyer shall pay to Seller the amount received by Buyer, the Buying Parties Buyer or any of the Acquired Entities, in respect its Affiliates of any Income refund, abatement or credit of Taxes for which Seller is 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 that would have been made had the account of Taxable Period ended on the other Party shall be paid to such other Party within thirty (30) days after such refund is receivedClosing Date.
(e) Seller and Buyer agree that any payment made with respect Any assessment or other Claim by a Governmental Authority seeking to Taxes pursuant to this enforce or collect a Tax, Losses or Other Costs described in Section 8.2 or as an indemnity under Article X 9.1 shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply subject to the provisions of Section 8.4, 8.5, 8.6, 8.8 and 8.9 of this Agreement to the extent that Section 8.26.3(h)(iv) does not apply to such assessment or Claim.
(f) For the avoidance of doubt, notwithstanding any other contrary provisions of this Agreement, Seller shall not be liable for any Taxes or related Losses to the extent such Taxes or related Losses have been included as a liability in calculating the Closing Net Working Capital, or such Taxes or Losses are included in Assumed Liabilities.
Appears in 1 contract
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating on the Closing Working Capital ValueDate Balance Sheet or described in Section 8.2(b)(ii), Seller shall be liable for, shall cause the payment of and shall indemnify and hold Buyer, APL, the Buying Parties APL Subsidiaries and the Acquired Entities their Affiliates harmless from, (i) subject to Section 12.2, any Taxes caused by or resulting from the sale of the Stock Shares (including all Taxes arising from the Section 338(h)(10) Electionssale or distribution of any Excluded Assets), (ii) any Income Taxes imposed on or incurred by the Acquired Entities APL or any APL Subsidiary arising out of the inclusion of APL or any APL Subsidiary in the Acquired Entities in BP America Group, any predecessor group or any combined, consolidated, unitary or similar group (a “"Group”") prior to the Closing Date, (iii) any Income Taxes imposed on or incurred by the Acquired Entities APL or any APL Subsidiary (or any Group with respect to the taxable items of the Acquired EntitiesAPL or any APL Subsidiary) for any taxable period (the “Pre-Closing Period”) ending on or before the Closing Date (or the portion, determined as described in paragraph (bc) 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 such period occurring on or before the Closing Date (the “Straddle "Pre-Closing Period”")) except to the extent that such Income for Taxes (x) arise arising from or are increased by transactions by the Acquired Entities APL or an APL Subsidiary outside the ordinary course of business after the Closing, (iv) any Taxes resulting from the income, business, property or operations of the Excluded Assets, (yv) arise from any Taxes imposed on or are increased incurred by a change after Closing of any accounting period APL or accounting practice of an Acquired Entity, or (z) are attributable APL Subsidiary with respect to the unreasonable default taxable items of Seaway allocable to the Pre-Closing Period except for Taxes arising from transactions by APL, an APL Subsidiary or delay Seaway outside the ordinary course of a Buying Party or an Acquired Entity business after the Closing, and (ivvi) any attorneys’ ' fees or other costs incurred by Buyer Buyer, APL, the APL Subsidiaries, or the Acquired Entities any Affiliate thereof in connection with obtaining any payment from Seller due under this paragraph (a) of Section 8.28.2(a); provided that no indemnity shall be provided for Taxes arising from the APL Conversion or the ASI Conversion or from the Seaway Restructuring.
(b) Buyer shall be liable for, and shall indemnify and hold Seller and its Affiliates harmless from, (i) any Taxes imposed on or incurred by or with respect to APL or any APL Subsidiary for which Seller is not liable under Section 8.2(a), (ii) any sales, use, value added, transfer, real property transfer or gain, gross receipts, excise, stamp, documentary or similar Taxes arising from the transactions contemplated in this Agreement and (iii) any attorneys' fees or other costs incurred by Seller or any Affiliate thereof in connection with any payment from Buyer under this Section 8.2(b). Seller shall have delivered any applicable clearance or exemption certificate or similar document(s) which may be required by any state taxing authority in order to relieve Buyer of any obligation to withhold any portion of the Purchase Price.
(c) Whenever it is necessary for purposes of paragraph (aSection 8.2(a) of this or Section 8.2 8.2(b) to determine the portion of any Income Taxes imposed on or incurred by the Acquired Entities APL or any APL Subsidiary (or any Group) for a Straddle taxable period beginning on or before and ending after the Closing Date which is allocable to the Pre-Closing Period, the determination shall be made, by assuming that in the Pre-Closing Period constitutes a separate 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, including the taxable period capital component of the Acquired Entities and by taking into account the actual taxable events occurring during such period (except that exemptionsTexas franchise Tax), allowances and deductions for a Straddle Period that are calculated on an annual or periodic basis shall be apportioned to the Pre-Closing Period ratably on a per diem basis and that basis, except any Income Taxes resulting from making the Section 338(h)(10) Elections shall be apportioned 100% to the Pre-Closing Period).
(c) Seller and Buyer will, to the 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.
(d) Buyer agrees to pay to Seller any refund received after the Closing Date by Buyer, the Buying Parties or any of the Acquired Entities, in respect of any Income Taxes for which Seller is 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 account of the other Party shall be paid to such other Party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.consequences of
Appears in 1 contract
Liability for Taxes. (a) Except to the extent such Taxes are accrued as a liability for purposes of calculating Liability on the Closing Working Capital ValueDate Balance Sheet, Seller EECI shall be liable for, shall cause the payment of and shall indemnify and hold BuyerMLP, the Buying Parties Company and the Acquired Entities their Affiliates harmless from, (i) subject to Section 12.2, any Taxes caused by or resulting from the sale of Restructuring Actions, the Stock (including all Taxes arising from Conversion Step and the Section 338(h)(10) Elections)Contribution Step, and any other actions taken in anticipation or pursuance thereof, (ii) any Income Taxes imposed on or incurred by any member of the Acquired Entities Company Group arising out of the inclusion of any member of the Acquired Entities Company Group in any combinedGroup by reason of Treasury Regulation ss.1.1502-6 or any analogous state, consolidated, unitary local or similar group (a “Group”) prior to the Closing Date, foreign law or regulation; (iii) any Income Taxes imposed on or incurred by any member of the Acquired Entities Company Group (or any Group with respect to the taxable items of any member of the Acquired EntitiesCompany Group) for any taxable period (the “Pre-Closing Period”) ending on before or before including the Closing Date (or the portion, determined as described in paragraph (bc) of this Section 8.210.2, 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 such period occurring on or before the Closing Date (the “Straddle Period”"PRE-CLOSING PERIOD")) except to the extent that such Income for Taxes (x) arise arising from or are increased by transactions by any member of the Acquired Entities Company Group outside the ordinary course of business after the Closing, or (y) arise from or are increased by a change after Closing 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 (iv) any Taxes resulting from the income, business, property or operations of the Excluded Assets, (v) any Taxes imposed on EECI or a Group that includes EECI with respect to the assets and operations of any member of the Company Group for any period or portion of a period during the Midcoast Ownership Period, (vi) any Taxes arising from any breach by EECI of its representations and warranties contained in Section 4.1(q) or its covenants in Section 10.1, and (vii) any reasonable attorneys’ ' fees or other reasonable costs incurred by Buyer MLP, any member of the Company Group or the Acquired Entities any Affiliate thereof in connection with obtaining any payment from Seller due EECI under this paragraph (a) of Section 8.210.2(a).
(b) From and after the Closing, MLP shall be liable for, and shall indemnify and hold EECI and its Affiliates (other than the Company Group) harmless from, (i) any Taxes imposed on or incurred by or with respect to any member of the Company Group for which EECI is not liable under Section 10.2(a), (ii) any Taxes arising from any breach by MLP of its covenants in Section 10.1, and (iii) any reasonable attorneys' fees or other reasonable costs incurred by EECI or any Affiliate thereof in connection with any payment from MLP under this Section 10.2(b).
(c) Whenever it is necessary for purposes of paragraph (aSection 10.2(a) of this or Section 8.2 10.2(b) to determine the portion of any Income Taxes imposed on or incurred by any member of the Acquired Entities Company Group (or any Group) for a Straddle taxable period beginning on or before and ending after the Closing Date which is allocable to the Pre-Closing Period, the determination shall be 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), by multiplying such Taxes by a fraction, the numerator of which is the number of days in the Pre-Closing Period and the denominator of which is the total number of days in such Tax period, and, in the case of other Taxes, by assuming that the Pre-Closing Period constitutes a separate taxable period of the Acquired Entities Company and by taking into account the actual taxable events occurring during such period (except that exemptions, allowances and deductions for a Straddle Period taxable period beginning on or before and ending after the Closing Date that are calculated on an annual or periodic basis basis, such as the deduction for depreciation in any state jurisdiction that does not follow the federal income tax characterization described in Section 10.1 above, shall be apportioned to the Pre-Closing Period ratably on a per diem basis and that any Income Taxes resulting from making the Section 338(h)(10) Elections shall be apportioned 100% to the Pre-Closing Periodbasis).
(cd) Seller EECI and Buyer MLP will, to the extent permitted by applicable Law, elect with the relevant taxing authorities to (i) apply the characterization of the contribution of the Ownership Interests described in Section 10.1 above, or, (ii) if such an election is not available, to close all taxable periods of any member of the Acquired Entities Company Group as of the close of business on the Closing Date.
(de) Buyer MLP agrees to pay to Seller EECI any refund received after the Closing Date by BuyerMLP or its Affiliates, including the Buying Parties or any of the Acquired EntitiesCompany Group, in respect of any Income Taxes for which Seller EECI is liable under paragraph Section 10.2(a), except to the extent such refund is shown as an asset on the Closing Date Balance Sheet. EECI agrees to pay to MLP any refund received by EECI or its Affiliates (aother than any member of the Company Group) in respect of this any Taxes for which MLP is liable under Section 8.210.2(b). The Parties parties shall cooperate in order to take all necessary and reasonable steps to claim any such refund. Any such refund received by a Party party or its Affiliate for the account of the other Party party shall be paid to such other Party party within thirty (30) days after such refund is received.
(e) Seller and Buyer agree that any payment made with respect to Taxes pursuant to this Section 8.2 or as an indemnity under Article X shall be treated by the parties on their Tax Returns as an adjustment to the Purchase Price. The indemnification limitations in Section 10.1(b) shall not apply to the provisions of this Section 8.2.
Appears in 1 contract
