Common use of Tax Audits and Contests; Cooperation Clause in Contracts

Tax Audits and Contests; Cooperation. (a) Parent and Seller shall have the right to settle and control the conduct, through counsel of its own choosing at its own expense, of any audit or administrative, judicial or other proceeding involving any asserted Tax liability or refund with respect to any member of the Company Group (any such audit or proceeding relating to an asserted Tax liability referred to herein as a “Contest”) relating to any taxable period ending on or prior to the Closing Date; provided, however, to the extent the Contest does not relate to an Affiliated Group Tax Return, Buyer shall have the right to participate, at their own expense, in such Contest (and Seller shall keep Buyer reasonably informed of the progress of such Contest and shall consult with Buyer before taking any significant action in connection therewith). Parent and Seller shall not settle or compromise any such Contest in a manner which adversely affects the Tax liability of Buyer or the Company Group (to the extent Buyer or the Company Group may be required to make any payment for such Tax liability that is not fully indemnified by Parent and Seller) without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. Parent and Seller may decline to control any such Contest by providing Buyer with a written notice of such decision, provided that such decision shall not impact Parent’s or Seller’s obligation for any Tax Losses with respect to such Contest. Notwithstanding the foregoing, if any Contest relates to an Affiliated Group Tax Return, Parent and Seller shall have the sole right to control and settle such Contest, provided, Parent and Seller shall keep Buyer reasonably informed to the extent such Contest relates to Taxes or Tax matters of any member of the Company Group.

Tax Audits and Contests; Cooperation. (a) After the Closing, Parent and Seller shall have the right to settle and control the conduct, through counsel of its own choosing at its own expensechoosing, of any audit audit, claim for refund or administrative, administrative or judicial or other proceeding involving any asserted Tax liability Liability or refund with respect to any member of the Company Group (the conduct of any such audit audit, claim for refund or proceeding relating to an asserted Tax liability Liability referred to herein as a “Contest”) relating to ). Parent shall promptly notify the Stockholders’ Agent upon receipt by Parent or any taxable period ending on or prior to Affiliate of Parent (including the Company after the Closing Date; ) of written notice of any inquiries, claims, assessments, audits or similar events with respect to Taxes relating to a Pre-Closing Tax Period for which the Company Indemnitors may be liable under this Agreement (any such inquiry, claim, assessment, audit or similar event, a “Tax Matter”), provided, however, that a failure to give such notice shall not relieve the Company Indemnitors of any obligation to indemnify Parent or any Affiliate of Parent (including the Company after the Closing Date) for any loss arising out of such asserted Tax Matter except to the extent that such failure to give such notice actually materially prejudices the Contest does not relate Company Indemnitors. Neither Parent nor any of its Affiliates shall enter into any settlement of or otherwise compromise any Tax Matter (other than a Tax Matter that could reasonably be expected to an Affiliated Group adversely affect Parent or any of its Affiliates (including the Company after the Closing Date) following the Closing Date) that adversely affects or may adversely affect the Tax Return, Buyer shall have the right to participate, at their own expense, in such Contest (and Seller shall keep Buyer reasonably informed Liability or indemnification obligations for Taxes hereunder of the progress Company Indemnitors or any Affiliate of such Contest and shall consult with Buyer before taking any significant action in connection therewith). Parent and Seller shall not settle or compromise any such Contest in a manner which adversely affects the Tax liability of Buyer or the Company Group (to the extent Buyer or the Company Group may be required to make any payment for such Tax liability that is not fully indemnified by Parent and Seller) foregoing without the prior written consent of Buyerthe Stockholders’ Agent, which consent shall not be unreasonably withheld, conditioned withheld or delayed. ; provided that it shall be a condition to such consent right that (i) the Stockholders’ Agent confirm in writing that the Tax Matter subject to the Contest is subject to indemnification pursuant to Section 5.2, (ii) the Stockholders’ Agent provides Parent and Seller may decline with evidence acceptable to control any such Contest Parent that the balance of the Escrow Amount (or security provided by providing Buyer with a written notice the Stockholders) is sufficient to fulfill the indemnification obligations in respect of such decisionTax Matter, provided and (iii) if it is required in order to defend the Tax Matter that the Tax claimed be paid to a Governmental Body and a refund pursued, the full amount of Taxes required to be paid in advance to such decision Governmental Body has been advanced to Parent out of the Escrow Fund or by the Stockholders. The Parent shall not impact Parent’s or Seller’s obligation for any Tax Losses keep the Stockholders’ Agent fully and timely informed with respect to such Contest. Notwithstanding the foregoingcommencement, if any Contest relates to an Affiliated Group Tax Return, Parent status and Seller shall have the sole right to control and settle such Contest, provided, Parent and Seller shall keep Buyer reasonably informed to the extent such Contest relates to Taxes or Tax matters nature of any member of Tax Matter and shall consider in good faith all reasonable comments provided by the Company GroupStockholders’ Agent.

Tax Audits and Contests; Cooperation. (a) Parent and After the Closing Date, Sellers, through the Seller Representative, shall have the right to settle and control the conduct, through counsel of its the Sellers’ own choosing and at its their own expense, of any audit or administrative, judicial or other proceeding Contest involving any asserted income Tax liability or refund with respect to any member Return of the Company Group (for any such audit or proceeding relating to an asserted Tax liability referred to herein as a “Contest”) relating to any taxable period ending on or prior to the Closing Date. The Seller Representative and Purchaser shall promptly forward to each other any and all claims, threatened claims, and related documentation relative to any actual or potential Contest and shall keep each other reasonably informed with respect thereto. Purchaser may, at its own expense, participate in any such Contest controlled by the Sellers (including retaining separate counsel) if, in Purchaser’s reasonable judgment, the resolution of such Contest could adversely affect Purchaser or its Affiliates including, for the avoidance of doubt, any Contest that could increase the Tax liability of the Company for any Tax period ending on or prior to the Closing Date and, in such case, the Sellers, through the Seller Representative, shall consult with Purchaser regarding all material strategic decisions with respect to such Contest and shall not enter into any agreement providing for the settlement or compromise of such Contest or consent to the entry of a judgment with respect to such Contest without Purchaser’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Purchaser shall control the conduct of all other Contests with respect to the Company; provided, however, to the extent such Contest may result in a claim for indemnification against the Contest does not relate Sellers pursuant to an Affiliated Group Tax Returnthis Agreement, Buyer the Seller Representative shall have the right to participatebe entitled, at their own its expense, in to participate in, but not to determine or conduct, the defense of such Contest (Contest, and Seller Purchaser shall keep Buyer reasonably informed of not enter into any agreement providing for the progress settlement or compromise of such Contest and shall consult or consent to the entry of a judgment with Buyer before taking any significant action in connection therewith). Parent and Seller shall not settle or compromise any respect to such Contest in a manner which adversely affects the Tax liability of Buyer or the Company Group (to the extent Buyer or the Company Group may be required to make any payment for such Tax liability that is not fully indemnified by Parent and Seller) without the prior written consent of Buyer, the Seller Representative (which consent shall not be unreasonably withheld, conditioned or delayed. Parent and Seller may decline to control any such Contest by providing Buyer with a written notice of such decision, provided that such decision shall not impact Parent’s or Seller’s obligation for any Tax Losses with respect to such Contest. Notwithstanding the foregoing, if any Contest relates to an Affiliated Group Tax Return, Parent and Seller shall have the sole right to control and settle such Contest, provided, Parent and Seller shall keep Buyer reasonably informed to the extent such Contest relates to Taxes or Tax matters of any member of the Company Group).