Common use of Pre-Closing Tax Periods Clause in Contracts

Pre-Closing Tax Periods. The Company (or, if the Company has been dissolved, the Controlling Shareholders) shall control the conduct of all stages of any Tax Proceeding with respect to the Company or any of its Subsidiaries for any Pre-Closing Tax Period; provided, however, that the Company (or, if the Company has been dissolved, the Controlling Shareholders) shall allow Buyer to participate in any such Tax Proceeding with respect to a Tax liability that is reasonably likely to affect Buyer, Sub or Cavion as described in paragraph (i) of this Section 4.5(b), and the Company shall not with respect to any such Tax Proceeding controlled by the Company accept any proposed adjustment or enter into any settlement or agreement that would create additional Tax liabilities or reimbursement obligations of Buyer, Sub or Cavion (unless they would be fully indemnified, subject to the terms of Section 7.1, by the Escrow Fund and/or the Controlling Shareholders), without the express written consent of Buyer, which consent shall not be unreasonably withheld or unduly delayed; and provided further that if such Tax Proceeding relates primarily to material Taxes for which Buyer, Sub or Cavion may be potentially liable and for which the Company or the Controlling Shareholders are not required to fully indemnify Buyer, subject to the terms of Section 7.1, then Buyer shall have the right to control the Tax Proceeding. The Company shall have the right to participate in any such Tax Proceeding controlled by Buyer and in which the Company or the Controlling Shareholders are reasonably likely to have an indemnification obligation under Section 7.1 (by a claim against the Escrow Fund or otherwise) or in which the Company or the Controlling Shareholders may be potentially liable for any Tax; and Buyer shall not with respect to any such Tax Proceeding accept any proposed adjustment or enter into any settlement or agreement that would materially increase such indemnification obligation or would create additional Tax liabilities of the Company or its shareholders, without the express written consent of the Company, which consent shall not be unreasonably withheld or unduly delayed.

Pre-Closing Tax Periods. The Company Acquiror shall prepare, or cause to be prepared, all Returns (or, if including amended Returns) of the Company has been dissolved, the Controlling Shareholders) shall control the conduct of for all stages of any Tax Proceeding with respect taxable periods ending on or prior to the Company or any of its Subsidiaries for any Closing Date (each, a “Pre-Closing Tax Period”) that have not been filed as of the Closing Date. Any such Returns prepared for any taxable period ending on or prior to the Closing Date shall be prepared in a manner consistent with past practices of the Company (except as required by applicable Law) and, for the avoidance of doubt, the Acquiror shall cause the Company to claim any available Section 41 Credit to the extent permitted by applicable Law (at a “more likely than not” or higher level of comfort). No later than thirty (30) days in the case of income Returns, and fifteen (15) days in the case of non-income Returns prior to the due date, including extensions, for any such Return, the Acquiror shall provide to the Securityholder Representative a copy of such Returns for its review, but only to the extent that the Stockholders are liable for Taxes reflected on such Return pursuant to this Agreement; provided, however, that the Company (or, if the Company has been dissolved, the Controlling Shareholders) shall allow Buyer to participate in any such Tax Proceeding with respect to income Return is due less than thirty (30) days (or less than fifteen (15) days in the case of a Tax liability that is reasonably likely to affect Buyer, Sub or Cavion as described in paragraph (inon-income Return) of this Section 4.5(b), and after the Company shall not with respect to any such Tax Proceeding controlled by the Company accept any proposed adjustment or enter into any settlement or agreement that would create additional Tax liabilities or reimbursement obligations of Buyer, Sub or Cavion (unless they would be fully indemnified, subject to the terms of Section 7.1, by the Escrow Fund and/or the Controlling Shareholders), without the express written consent of Buyer, which consent shall not be unreasonably withheld or unduly delayed; and provided further that if such Tax Proceeding relates primarily to material Taxes for which Buyer, Sub or Cavion may be potentially liable and for which the Company or the Controlling Shareholders are not required to fully indemnify Buyer, subject to the terms of Section 7.1Closing Date, then Buyer the Acquiror shall deliver a draft of such Return as soon as practicable after the Closing Date. The Securityholder Representative shall have the right to control review and provide reasonable comments on such Returns during the Tax Proceedingtwenty (20) days (or ten (10) days in the case of non-income tax Returns) following the receipt of such Returns (or a shorter period taking into account the due date for filing such Returns) and the Acquiror shall incorporate therein such changes, if any, as the Acquiror reasonably determines are required by applicable Law. The Company Acquiror shall have file or cause to be filed such Returns on or before the right due date for filing (or as soon as reasonably practicable thereafter in the case of such Returns that are past due for filing) and, not later than two (2) Business Days prior to participate in any the due date for filing such Tax Proceeding controlled by Buyer Returns, the Acquiror and in which the Company or the Controlling Shareholders are reasonably likely Securityholder Representative shall deliver joint written instructions to have an indemnification obligation under Section 7.1 (by a claim against the Escrow Fund or otherwise) or in which the Company or the Controlling Shareholders may be potentially liable for Agent to release an amount equal to any Tax; Pre-Closing Taxes shown as due and Buyer shall not payable with respect to any such Tax Proceeding accept any proposed adjustment or enter into any settlement or agreement that Returns for which the Acquiror would materially increase such be entitled to indemnification obligation or would create additional Tax liabilities of pursuant to ‎Section 8.2(e) from the Company or its shareholders, without the express written consent of the Company, which consent shall not be unreasonably withheld or unduly delayedIndemnity Escrow Fund.

Pre-Closing Tax Periods. The Company After the Closing, Buyer shall (or, if and shall cause the Company has been dissolved, Companies to) timely prepare (in a manner consistent with the Controlling ShareholdersCompanies' prior practice) shall control the conduct of and file all stages of any Tax Proceeding with respect Returns related to the Company or any of its Subsidiaries for any Pre-Closing Tax Period; provided, however, Periods ("Pre-Closing Tax Returns" and each a "Pre-Closing Tax Return") for the Companies that are filed after the Company Closing Date. Buyer shall provide to Seller a draft of each such Pre-Closing Tax Return at least seventy-five (or, if the Company has been dissolved, the Controlling Shareholders75) shall allow Buyer to participate in any such Tax Proceeding with respect to a Tax liability that is reasonably likely to affect Buyer, Sub or Cavion as described in paragraph (i) of this Section 4.5(b), and the Company shall not with respect to any such Tax Proceeding controlled by the Company accept any proposed adjustment or enter into any settlement or agreement that would create additional Tax liabilities or reimbursement obligations of Buyer, Sub or Cavion (unless they would be fully indemnified, subject days prior to the terms of Section 7.1, by the Escrow Fund and/or the Controlling Shareholdersdue date for filing such Pre-Closing Tax Return (including any extension), without the express written consent of Buyer, which consent shall not be unreasonably withheld or unduly delayed; and provided further that if such Tax Proceeding relates primarily to material Taxes for which Buyer, Sub or Cavion may be potentially liable and for which the Company or the Controlling Shareholders are not required to fully indemnify Buyer, subject to the terms of Section 7.1, then Buyer . Seller shall have the right to control review and to comment on, and to reasonably request that changes be made to, each such Pre-Closing Tax Return and to deliver to Buyer any changes to each such Pre-Closing Tax Returns no later than thirty (30) days prior to the due date for filing such Pre-Closing Tax ProceedingReturn. The Company shall have Seller and Buyer agree to consult and to attempt to resolve in good faith any issue arising as a result of the right review of such Pre-Closing Tax Returns and mutually to participate in consent to the filing of such Pre-Closing Tax Returns as promptly as possible. If Buyer and Seller cannot agree on all issues arising as a result of Seller's review of any such Pre-Closing Tax Proceeding controlled by Buyer and in which Return, then, within twenty (20) days prior to the Company or the Controlling Shareholders are reasonably likely to have an indemnification obligation under Section 7.1 (by a claim against the Escrow Fund or otherwise) or in which the Company or the Controlling Shareholders may be potentially liable due date for any Tax; filing such Pre-Closing Tax Return, Seller and Buyer shall not with respect refer the matter to the Neutral Auditor to arbitrate the dispute in New York City, New York. Seller and Buyer shall equally share the fees and expenses of such Neutral Auditor and its determination as to any such Tax Proceeding accept any proposed adjustment or enter into any settlement or agreement that would materially increase such indemnification obligation or would create additional Tax liabilities issue in dispute shall be concluded within five (5) days of the Company or its shareholdersdue date for filing such Pre-Closing Tax Return and such determination shall be binding on Seller, without the express written consent Companies and Buyer and shall be enforceable in a court of the Company, which consent shall not be unreasonably withheld or unduly delayedcompetent jurisdiction.

Pre-Closing Tax Periods. The Company (or, if In the Company has been dissolved, the Controlling Shareholders) shall control the conduct of all stages event of any Tax Proceeding, the Representative, on behalf of the Tax Indemnifying Party, shall have the right to control any Tax Proceeding with in respect to of the Company or any of and its Subsidiaries (A) for any Pre-taxable period that ends on or before the Closing Tax PeriodDate; provided, however, that the Company (or, if the Company has been dissolved, the Controlling ShareholdersB) shall allow Buyer to participate in for which any such Tax Proceeding applicable indemnifying Person may be liable for Taxes; and (C) with respect to a Straddle Period to the extent such Tax liability Proceeding relates to Taxes attributable to a pre-closing Straddle Period; provided that is reasonably likely to affect Buyer, Sub or Cavion as described in paragraph (i) of this Section 4.5(b), and the Company Representative shall not have the right to control a Tax Proceeding to the extent that the Representative, in the reasonable good faith judgment of Parent, fails to conduct such Tax Proceeding actively and diligently. Notwithstanding the foregoing, the Representative shall not settle any Tax Proceeding except with respect to any such a Pre-Closing Income Tax Proceeding controlled by the Company accept any proposed adjustment or enter into any settlement or agreement that would create additional Tax liabilities or reimbursement obligations of Buyer, Sub or Cavion (unless they would be fully indemnified, subject to the terms of Section 7.1, by the Escrow Fund and/or the Controlling Shareholders)Return, without the express prior written consent of BuyerParent, which consent shall not be unreasonably withheld withheld; provided, that such consent shall not be required if Parent is entitled to indemnification under Section 12.1 and funds remain in the Escrow Account to satisfy such indemnification obligation with respect to the subject Taxes. Furthermore, Parent and counsel of its choosing shall have the right to participate fully in all aspects of the prosecution or unduly delayed; and provided further that if defense of such Tax Proceeding relates primarily and the Representative shall inform Parent promptly in advance of the date, time, and place of all administrative or judicial meetings, conferences, hearings and other proceedings relating to material Taxes for which Buyersuch Tax Proceeding and shall provide Parent all information document requests and responses, Sub proposed notices of deficiency, notices of deficiencies, revenue agents’ reports, protests, petitions and any other documents relating to such Tax Proceeding promptly upon receipt from, or Cavion in advance of submission to (as the case may be), the relevant taxing authority. Parent shall be potentially liable entitled to have its representatives attend and for which the Company participate in any such administrative or the Controlling Shareholders are not required to fully indemnify Buyerjudicial meeting, subject conference, hearing or other proceeding. Before taking any action with respect to the terms conduct of Section 7.1such Tax Proceeding (including, then Buyer but not limited to, the submission of any protest, petitions or responses to information document requests), the Representative shall first consult with Parent in good faith about such action. If the Representative does not notify Parent in writing of its election to take control of any Tax Proceeding within 15 days of notice thereof, Parent shall have the right to control the any such Tax Proceeding. The Company ; provided, if and to the extent Parent shall have the right to participate in control any such Tax Proceeding controlled by Buyer and in which the Company or the Controlling Shareholders are reasonably likely to have an indemnification obligation under Section 7.1 (by a claim against the Escrow Fund or otherwise) or in which the Company or the Controlling Shareholders may be potentially liable for any Tax; and Buyer shall not with respect pertaining to any such Tax Proceeding accept any proposed adjustment or enter into any settlement or agreement that would materially increase such indemnification obligation or would create additional Tax liabilities Taxes of the Company and its Subsidiaries arising out of the matters disclosed in items 3 and 4 of Section 3.10(a) of the Disclosure Schedule or its shareholdersany breach of any representation or warranty made by the Company in clause (g) of Section 3.10, (A) Parent shall consult with the Representative in good faith about such Tax Proceeding, and (B) Parent shall not settle any Tax Proceeding, without the express prior written consent of the CompanyRepresentative, which consent shall not be unreasonably withheld or unduly delayedwithheld. The right of Parent to control any Tax Proceeding pursuant to the foregoing sentence will not relieve any Tax Indemnifying Party of any indemnification obligations under this Agreement.

Pre-Closing Tax Periods. The Purchaser and Company (or, if shall prepare or cause to be prepared and shall timely file or cause to be filed all Tax Returns for the Company has been dissolved, and each Company Subsidiary for all Pre-closing Tax Periods and Straddle Periods which are due (including with extensions) after the Controlling Shareholders) shall control Closing Date with the conduct of all stages of any Tax Proceeding with respect to income for the Company or any of its Subsidiaries for any Pre-Closing Tax Period; providedPeriod and the portion of any straddle period before the Effective Time determined by an actual closing of the Company's books. The Purchaser shall provide copies of such Tax Returns to the Seller Representative at least thirty (30) days prior to their due date for their review and approval, howeversuch approval not to be unreasonably withheld. If the Seller Representative does not notify Purchaser of any objections at least ten (10) days prior to the due date of such Tax Returns, that Purchaser may file such returns. The parties shall act in good faith to resolve any objections raised by the Company Stockholders and if not resolved within five (or5) days of the due date such objections raised by the Seller Representative shall be resolved by an independent accountant mutually agreeable to Purchaser and Seller Representative. If such objections are not resolved by the due date of the Tax Return, if Purchaser may file such Tax Return. When such objections are resolved, the Purchaser shall file or cause to be filed an amended Tax Return as may be requested by Seller Representative reflecting the resolution of such objections. Except as otherwise required by applicable Law, such Tax Returns for each of Company and each Company Subsidiary shall be prepared in a manner consistent with Tax Returns prepared and filed by the Company has been dissolvedprior to the Closing Date. The Purchaser and Company shall be solely responsible for, and shall promptly pay, all Taxes of the Controlling Shareholders) shall allow Buyer to participate in any such Tax Proceeding Company with respect to such periods except to the extent such Taxes are due to a Tax liability that is reasonably likely to affect Buyer, Sub breach of the representation and warranty in Section 3.07(h) or Cavion as described in paragraph (i) of this Section 4.5(b), and the Company shall not with respect to any such Tax Proceeding controlled by the Company accept any proposed adjustment or enter into any settlement or agreement that would create additional Tax liabilities or reimbursement obligations of Buyer, Sub or Cavion (unless they would be fully indemnified, subject to the terms of Section 7.1, by the Escrow Fund and/or the Controlling Shareholders), without the express written consent of Buyer, which consent shall not be unreasonably withheld or unduly delayed; and provided further that if such Tax Proceeding relates primarily to material Taxes for which Buyer, Sub or Cavion may be potentially liable and for which the Company or the Controlling Shareholders are not required to fully indemnify Buyer, subject to the terms of Section 7.1, then Buyer shall have the right to control the Tax Proceeding. The Company shall have the right to participate in any such Tax Proceeding controlled by Buyer and in which the Company or the Controlling Shareholders are reasonably likely to have an indemnification obligation under Section 7.1 (by a claim against the Escrow Fund or otherwise) or in which the Company or the Controlling Shareholders may be potentially liable for any Tax; and Buyer shall not with respect to any such Tax Proceeding accept any proposed adjustment or enter into any settlement or agreement that would materially increase such indemnification obligation or would create additional Tax liabilities of the Company or its shareholders, without the express written consent of the Company, which consent shall not be unreasonably withheld or unduly delayed.