Tax Audits and Contests; Cooperation. (a) After the Closing Date, except as provided in (b), (c) and (d) below, the Parent shall control the conduct, through counsel of its own choosing and at its own expense, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the Company or any of the Company Subsidiaries (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). (b) Subject to paragraph (d) below, in the case of a Contest after the Closing Date that relates solely to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1 and which are not reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary, the Representative shall control the conduct of such Contest, but the Parent shall have the right to participate in such Contest at its own expense, and the Representative shall not be able to settle, compromise and/or concede any portion of such Contest without the consent of the Parent, which consent shall not be unreasonably withheld or delayed; provided that, if the Representative fails or declines to assume control of the conduct of any such Contest within a reasonable period following the receipt by the Representative of notice of such Contest, the Parent shall have the right to assume control of such Contest but the Representative shall have the right to participate in such Contest at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest that is likely to result in a claim for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. (c) Subject to paragraph (d) below, in the case of a Contest after the Closing Date that relates both to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1 and either (i) to Taxes for which the Parent Indemnitees are not indemnified under Section 7.1, or (ii) to any Taxes reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary, the Parent shall control the conduct of such Contest, but the Representative shall have the right to participate in such Contest at its own expense, and with respect to any Tax for which the Parent is indemnified under Section 7.1, the Parent shall not settle, compromise and/or concede such Contest without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. (d) Notwithstanding anything to the contrary in this Section 7.5, the Representative shall, at its sole expense (including, for the avoidance of doubt, reasonable expenses incurred by the Company or any Company Subsidiary in cooperating with the Representative or in filing any amended Tax Return or other submission), control the portion of any Contest, or any other proceeding with any Governmental Authority, that relates to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1(a) as a result of a breach of the representations and warranties set forth in Section 3.13(l), provided that, (i) subject to such control, following the execution of this Agreement, the Representative shall consult with the Parent and its counsel with regard to the conduct of any such Contest or proceeding, shall keep the Parent and the Company informed of any proceedings, events and developments in connection therewith, shall provide the Parent and the Company copies of all substantive correspondence and documents relating thereto (including, for the avoidance of doubt, any substantive correspondence and documents relating to procedural aspects of any such Contest or proceeding), and shall, to the extent reasonably practical, provide the Parent, the Company and the Parent’s counsel the opportunity to review and comment in advance on substantive submissions to any Governmental Authority in connection therewith, and (ii) the Representative shall have the right to settle, compromise and/or concede that portion of any such Contest or proceeding without consent of the Parent unless any such action taken by the Representative would have an adverse effect on any of the Parent Indemnitees for which the affected party is not indemnified pursuant to Section 7.1(a). If the Representative fails or declines to assume control of the conduct of any such Contest or proceeding within ten (10) Business Days following the receipt by the Representative of any notice of such a Contest or proceeding, the Parent shall have the right to assume control of such Contest or proceeding but the Representative shall have the right to participate in such Contest or proceeding at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest or proceeding that is likely to result in a claim for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Agreement, the Parent Indemnitees shall be indemnified as provided in Section 7.1(a) for all reasonable fees and costs (including reasonable outside professional fees and costs) incurred in the control of any Contest or proceeding governed by this Section 7.5(d) (including any such costs relating to filing any amended Tax Return or other submission) regardless of whether or not any indemnifiable Taxes are required to be paid in connection with or as a result thereof. (e) The Representative and the Parent agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the Company and the Company Subsidiaries as is reasonably requested for the preparation, prosecution, defense or conduct of any Contest, other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns. The Representative and the Parent shall reasonably cooperate with each other in the conduct of any Contest, other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns involving or otherwise relating to the Company or the Company Subsidiaries (or their income or assets) with respect to any Tax and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 7.5. Any information obtained under this Section 7.5 shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceeding or as otherwise required by law. (f) Each of the Parent and the Company shall use its reasonable best efforts to properly retain and maintain the Tax and accounting records of the Company and the Company Subsidiaries that relate to any Tax Periods (or portions thereof) ending on or before the Closing Date until the expiration of the applicable statutes of limitations. (g) The Parent shall promptly notify the Representative, and the Representative shall promptly notify the Parent, in writing within 30 Business Days from the receipt of notice of any pending or threatened Tax audits or assessments of the Company or any Company Subsidiary, with respect to which the notifying party may seek to be indemnified under Section 7.1. Failure to notify the indemnifying party under this Section 7.5(g) shall not relieve the indemnifying party from its obligations under Section 7.1, except to the extent that the indemnifying party shall have been actually prejudiced as a result of such failure. In that case, the amount the indemnifying party is otherwise required to pay under Section 7.1 shall be reduced by the amount determined pursuant to the preceding sentence.
Appears in 1 contract
Samples: Merger Agreement (Fidelity National Financial, Inc.)
Tax Audits and Contests; Cooperation. (ai) After the Closing Date, except as provided in (b), (cii) and (diii) belowof this Section 13.10(a), the Parent Purchaser shall control the conduct, through counsel of its own choosing and at its own expensechoosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the Operating Company or any of the Company Subsidiaries (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”).
(bii) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates solely to Taxes for which any of the Parent Indemnitees Purchaser is entitled to be indemnified under Section 7.1 and which are not reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary13.2(a), the Representative Seller shall control the conduct of such Contest, but the Parent Purchaser shall have the right to participate in such Contest at its own expense, and the Representative Seller shall not be able to settle, compromise and/or concede any portion of such Contest that is reasonably likely to affect the Tax liability of the Operating Company for any taxable year (or portion thereof) beginning after the Closing Date without the reasonable consent of the ParentPurchaser, which consent shall not be unreasonably withheld or delayed; provided thatprovided, that if the Representative Seller fails or declines to assume control of the conduct of any such Contest within a reasonable period following the receipt by the Representative Seller of notice of such Contest, the Parent Purchaser shall have the right to assume control of such Contest but the Representative and shall have the right to participate in such Contest at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest that is likely to result in a claim for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayedits sole discretion.
(ciii) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates both to Taxes for which any of the Parent Indemnitees Purchaser is entitled to be indemnified under Section 7.1 13.2(a) and either (i) to Taxes for which the Parent Indemnitees are Purchaser is not indemnified under Section 7.1, or (ii) to any Taxes reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary13.2(a), the Parent Purchaser shall control the conduct of such Contest, but the Representative Seller shall have the right to participate in such Contest at its own expense, and with respect to any Tax for which the Parent is indemnified under Section 7.1, the Parent Purchaser shall not settle, compromise and/or concede such Contest without the consent of the RepresentativeSeller, which consent shall not be unreasonably withheld or delayed.
(div) Notwithstanding anything to In the contrary case of a Tax that is contested in accordance with the provisions of this Section 7.513.10, payment of such contested Tax will not be considered due earlier than the Representative shalldate a “final determination” to such effect is made by such Governmental Body or a court. For this purpose, at its sole expense (includinga “final determination” shall mean a settlement, for the avoidance of doubtcompromise, reasonable expenses incurred by the Company or any Company Subsidiary in cooperating other agreement with the Representative or relevant Governmental Body, whether contained in filing any amended Tax Return an IRS Form 870 or other submission)comparable form, control or otherwise, such as a closing agreement with the portion relevant Governmental Body, an agreement contained in IRS Form 870-AD or other comparable form, an agreement that constitutes a “determination” under Section 1313(a)(4) of the Code, a deficiency notice with respect to which the period for filing a petition with the Tax Court or the relevant state, local or foreign tribunal has expired or a decision of any Contest, or any other proceeding with any Governmental Authority, court of competent jurisdiction that relates to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1(a) as a result of a breach of the representations and warranties set forth in Section 3.13(l), provided that, (i) not subject to such control, following the execution of this Agreement, the Representative shall consult with the Parent and its counsel with regard appeal or as to the conduct of any such Contest or proceeding, shall keep the Parent and the Company informed of any proceedings, events and developments in connection therewith, shall provide the Parent and the Company copies of all substantive correspondence and documents relating thereto (including, for the avoidance of doubt, any substantive correspondence and documents relating to procedural aspects of any such Contest or proceeding), and shall, to the extent reasonably practical, provide the Parent, the Company and the Parent’s counsel the opportunity to review and comment in advance on substantive submissions to any Governmental Authority in connection therewith, and (ii) the Representative shall have the right to settle, compromise and/or concede that portion of any such Contest or proceeding without consent of the Parent unless any such action taken by the Representative would have an adverse effect on any of the Parent Indemnitees for which the affected party is not indemnified pursuant to Section 7.1(a). If the Representative fails or declines to assume control of the conduct of any such Contest or proceeding within ten (10) Business Days following the receipt by the Representative of any notice of such a Contest or proceeding, the Parent shall have the right to assume control of such Contest or proceeding but the Representative shall have the right to participate in such Contest or proceeding at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest or proceeding that is likely to result in a claim time for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Agreement, the Parent Indemnitees shall be indemnified as provided in Section 7.1(a) for all reasonable fees and costs (including reasonable outside professional fees and costs) incurred in the control of any Contest or proceeding governed by this Section 7.5(d) (including any such costs relating to filing any amended Tax Return or other submission) regardless of whether or not any indemnifiable Taxes are required to be paid in connection with or as a result thereofappeal has expired.
(ev) The Representative Seller and the Parent Purchaser agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the Operating Company and the Company Subsidiaries Packaged Gas Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest, other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns. The Representative Seller and the Parent Purchaser shall reasonably cooperate with each other in the conduct of any Contest, Contest or other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns involving or otherwise relating to the Operating Company or the Company Subsidiaries (or their its income or assets) with respect to any Tax and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 7.513.10(a)(v). Any information obtained under this Section 7.5 13.10(a)(v) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceeding or as otherwise required by lawproceeding.
(fvi) Each of the Parent Purchaser and the Company Operating Company, on the one hand, and the Seller, on the other hand, shall (a) use its their reasonable best efforts to properly retain and maintain the Tax tax and accounting records of the Operating Company and the Company Subsidiaries or any of its Affiliates that relate to any Pre-Closing Tax Periods for six (6) years and shall thereafter provide each other with written notice prior to any destruction, abandonment or portions thereof) ending on or before the Closing Date until the expiration disposition of the applicable statutes of limitations.
(g) The Parent shall promptly notify the Representative, and the Representative shall promptly notify the Parent, in writing within 30 Business Days from the receipt of notice of any pending or threatened Tax audits or assessments of the Company all or any Company Subsidiaryportions of such records, with respect (b) transfer such records to which each other upon written request prior to any such destruction, abandonment or disposition and (c) allow each other and their Affiliates and their respective agents and representatives, at times and dates reasonably and mutually acceptable to the notifying party parties, to from time to time inspect and review such records as they may seek deem necessary or appropriate; provided, however, that in all cases, such activities are to be indemnified under Section 7.1conducted during normal business hours and at the reviewing party’s sole expense. Failure to notify the indemnifying party Any information obtained under this Section 7.5(g13.10(a)(vi) shall not relieve the indemnifying party from its obligations under Section 7.1be kept confidential, except to as may be otherwise necessary in connection with the extent that filing of Tax Returns or in the indemnifying party shall have been actually prejudiced as conduct of a result of such failure. In that case, the amount the indemnifying party is otherwise required to pay under Section 7.1 shall be reduced by the amount determined pursuant to the preceding sentenceContest or other Tax proceeding.
Appears in 1 contract
Tax Audits and Contests; Cooperation. (a) After the Closing DateClosing, except as provided in (bSections 8.3(b) and 8.3(c), (c) and (d) below, the Parent Buyer shall control the conduct, through counsel of its own choosing and at its own expense, of any audit, claim for refund, refund or administrative or judicial proceeding involving any asserted Tax liability Liability or refund with respect to the Company or any of the Company its Subsidiaries (any such audit, claim for refund, refund or proceeding relating to an asserted Tax liability Liability referred to herein as a “Contest”).
(b) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates solely to Taxes for which any of the Parent Indemnitees Buyer is entitled to be indemnified under Section 7.1 8.1(a) and which are do not reportable on any combined, consolidated, or unitary Tax Return that includes any entity other exceed by more than $50,000 the Company or a Company Subsidiaryamount of funds remaining in the Escrow Account at the time such contest is initiated, the Representative Seller shall control the conduct of such Contest, but the Parent Buyer shall have the right to participate in such Contest at its own expense, and the Representative Seller shall not be able to settle, compromise and/or or concede any portion of such Contest without the consent of the ParentBuyer, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned; provided thatprovided, that if the Representative Seller fails or declines to assume control of the conduct of any such Contest within a reasonable period following the receipt by the Representative Seller of notice of such Contest, the Parent Buyer shall have the right to assume control of such Contest but the Representative shall have the right to participate in such Contest at its own expense and the Parent shall not be able to settle, compromise and/or or concede any portion of such Contest that is likely to result in a claim for indemnification hereunder without the consent of the RepresentativeSeller, which consent shall not to be unreasonably withheld withheld, conditioned or delayed; provided, further, that if, at any time before the resolution of a Contest otherwise described in this Section 8.3(a), the amount of Taxes at issue exceeds the amount then remaining in the Escrow Account, the Buyer shall have the option to assume control of such Contest in accordance with the procedures described in Section 8.3(c).
(c) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that (i) relates solely to Taxes for which the Buyer is indemnified which exceeds the amount of funds remaining in the Escrow Account by more than $50,000 at the time the contest is initiated or (ii) relates both to Taxes for which any of the Parent Indemnitees Buyer is entitled to be indemnified under Section 7.1 8.1(a) and either (i) to Taxes for which the Parent Indemnitees are Buyer is not indemnified under Section 7.1, or (ii) to any Taxes reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary8.1(a), the Parent Buyer shall control the conduct of such Contest, but the Representative Seller shall have the right to participate in such Contest at its own expense, and with respect to any Tax for which the Parent is indemnified under Section 7.1, the Parent Buyer shall not settle, compromise and/or or concede such Contest without the consent of the RepresentativeSeller, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned. Any expenses that are the responsibility of the Seller pursuant to Section 8.3(b) or this Section 8.3(c) shall be satisfied solely from any funds remaining in the Escrow Account.
(d) Notwithstanding anything to the contrary in this Section 7.5, the Representative shall, at its sole expense (including, for the avoidance of doubt, reasonable expenses incurred by the Company or any Company Subsidiary in cooperating with the Representative or in filing any amended Tax Return or other submission), control the portion of any Contest, or any other proceeding with any Governmental Authority, that relates to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1(a) as a result of a breach of the representations and warranties set forth in Section 3.13(l), provided that, (i) subject to such control, following the execution of this Agreement, the Representative shall consult with the Parent and its counsel with regard to the conduct of any such Contest or proceeding, shall keep the Parent The Seller and the Company informed of any proceedings, events and developments in connection therewith, Buyer shall provide the Parent and the Company copies of all substantive correspondence and documents relating thereto (including, for the avoidance of doubt, any substantive correspondence and documents relating to procedural aspects of any such Contest or proceeding), and shall, to the extent reasonably practical, provide the Parent, the Company and the Parent’s counsel the opportunity to review and comment in advance on substantive submissions to any Governmental Authority in connection therewith, and (ii) the Representative shall have the right to settle, compromise and/or concede that portion of any such Contest or proceeding without consent of the Parent unless any such action taken by the Representative would have an adverse effect on any of the Parent Indemnitees for which the affected party is not indemnified pursuant to Section 7.1(a). If the Representative fails or declines to assume control of the conduct of any such Contest or proceeding within ten (10) Business Days following the receipt by the Representative of any notice of such a Contest or proceeding, the Parent shall have the right to assume control of such Contest or proceeding but the Representative shall have the right to participate in such Contest or proceeding at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest or proceeding that is likely to result in a claim for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Agreement, the Parent Indemnitees shall be indemnified as provided in Section 7.1(a) for all reasonable fees and costs (including reasonable outside professional fees and costs) incurred in the control of any Contest or proceeding governed by this Section 7.5(d) (including any such costs relating to filing any amended Tax Return or other submission) regardless of whether or not any indemnifiable Taxes are required to be paid in connection with or as a result thereof.
(e) The Representative and the Parent agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to employees and books and records) and assistance relating to the Company and the Company its Subsidiaries as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest, other proceeding (including a request for regulatory relief) Contest or in connection with the preparation and filing of amended Tax ReturnsPRC Withholding Taxes. The Representative Seller and the Parent Buyer shall reasonably use commercially reasonable efforts to cooperate with each other in the conduct of any Contest, Contest or other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns involving or otherwise relating to the Company or the Company its Subsidiaries (or their income or assets) with respect to any Tax and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 7.58.3(d). Any information obtained under this Section 7.5 8.3(d) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceeding or as otherwise required by lawAction.
(fe) Each of the Parent Buyer and the Company shall (i) use its commercially reasonable best efforts to properly retain and maintain the Tax and accounting records of the Company and the Company its Subsidiaries that relate to any Pre-Closing Tax Periods (for five years and shall thereafter provide the Seller with written notice prior to any destruction, abandonment or portions thereof) ending on or before the Closing Date until the expiration disposition of the applicable statutes of limitations.
(g) The Parent shall promptly notify the Representative, and the Representative shall promptly notify the Parent, in writing within 30 Business Days from the receipt of notice of any pending or threatened Tax audits or assessments of the Company all or any Company Subsidiaryportions of such records, with respect (ii) transfer such records to which the notifying party Seller upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the Seller and its agents and representatives, at times and dates reasonably and mutually acceptable to the parties, to from time to time inspect and review such records as the Seller may seek deem necessary or appropriate; provided, however, that in all cases, such activities are to be indemnified under Section 7.1conducted by the Seller during normal business hours and at the Seller’s sole expense. Failure to notify the indemnifying party Any information obtained under this Section 7.5(g8.3(e) shall not relieve the indemnifying party from its obligations under Section 7.1be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Action primarily related to the extent that the indemnifying party shall have been actually prejudiced as a result of such failure. In that case, the amount the indemnifying party is otherwise required to pay under Section 7.1 shall be reduced by the amount determined pursuant to the preceding sentenceTaxes.
Appears in 1 contract
Samples: Share Purchase Agreement (Michael Kors Holdings LTD)
Tax Audits and Contests; Cooperation. (a) After the Closing Date, except as provided in (b), (c) and (d) below, the Parent shall control the conduct, through counsel of its own choosing and at its own expense, case of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the Company or any of the Company Subsidiaries Companies (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”) relating to a Tax Return of any consolidated, combined or unitary group of which Seller and the Companies were members, (a “Pre-Closing Consolidated Return”), and except as provided in (b) and (c) below, Buyer shall control the conduct, through counsel of its own choosing, of any Contest.
(b) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates solely to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1 and which are not reportable on any combined, consolidated, or unitary a Tax Return that includes for a Pre-Closing Tax Period (including, without limitation, any entity other than the Company or a Company SubsidiaryPre-Closing Consolidated Returns), the Representative Seller shall control the conduct of such Contest, but the Parent Buyer shall have the right to participate in such Contest (or, in the case of a Contest that relates to a consolidated group Tax Return of Seller, in any portion of such Contest that relates to any of the Companies) at its own expense, and the Representative Seller shall not be able to settle, compromise and/or concede any portion of such Contest that is reasonably likely to affect the Tax liability of any of the Companies for any taxable year (or portion thereof) beginning after the Closing Date without the consent of the ParentBuyer, which consent shall not be unreasonably withheld or delayed; provided thatthat with respect to any such Contest other than a Contest that relates solely to a consolidated Tax Return of the Seller Group, if the Representative Seller fails or declines to assume control of the conduct of any such Contest within a reasonable period following the receipt by the Representative Seller of notice of such Contest, the Parent Buyer shall have the right to assume control of such Contest but the Representative and Buyer shall have the right to participate in such Contest at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest that is likely to result in its sole discretion, unless such Contest involves a claim for indemnification hereunder matter indemnifiable by Seller, in which case Buyer shall not settle, compromise and/or concede such Contest without the prior written consent of the RepresentativeSeller, which consent shall not be unreasonably withheld or delayedwithheld, except that if Seller does not provide Buyer with such written consent within 30 days after Buyer notifies Seller of such proposed settlement, compromise and/or concession, Buyer shall be able to settle, compromise and/or concede such Contest without such consent.
(c) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates both to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1 and either (i) to Taxes for which the Parent Indemnitees are not indemnified under Section 7.1a Straddle Return, or (ii) to any Taxes reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary, the Parent Seller shall control the conduct of such Contest, but the Representative Buyer shall have the right to participate in such Contest at its own expense, and with respect to any Tax for which the Parent is indemnified under Section 7.1, the Parent Seller shall not settle, compromise and/or concede such Contest without the prior written consent of the RepresentativeBuyer, which consent shall not be unreasonably withheld or delayed.
(d) Notwithstanding anything to the contrary in this Section 7.5, the Representative shall, at its sole expense (including, for the avoidance of doubt, reasonable expenses incurred by the Company or any Company Subsidiary in cooperating with the Representative or in filing any amended Tax Return or other submission), control the portion of any Contest, or any other proceeding with any Governmental Authority, that relates to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1(a) as a result of a breach of the representations Seller and warranties set forth in Section 3.13(l), provided that, (i) subject to such control, following the execution of this Agreement, the Representative shall consult with the Parent and its counsel with regard to the conduct of any such Contest or proceeding, shall keep the Parent and the Company informed of any proceedings, events and developments in connection therewith, shall provide the Parent and the Company copies of all substantive correspondence and documents relating thereto (including, for the avoidance of doubt, any substantive correspondence and documents relating to procedural aspects of any such Contest or proceeding), and shall, to the extent reasonably practical, provide the Parent, the Company and the Parent’s counsel the opportunity to review and comment in advance on substantive submissions to any Governmental Authority in connection therewith, and (ii) the Representative shall have the right to settle, compromise and/or concede that portion of any such Contest or proceeding without consent of the Parent unless any such action taken by the Representative would have an adverse effect on any of the Parent Indemnitees for which the affected party is not indemnified pursuant to Section 7.1(a). If the Representative fails or declines to assume control of the conduct of any such Contest or proceeding within ten (10) Business Days following the receipt by the Representative of any notice of such a Contest or proceeding, the Parent shall have the right to assume control of such Contest or proceeding but the Representative shall have the right to participate in such Contest or proceeding at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest or proceeding that is likely to result in a claim for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Agreement, the Parent Indemnitees shall be indemnified as provided in Section 7.1(a) for all reasonable fees and costs (including reasonable outside professional fees and costs) incurred in the control of any Contest or proceeding governed by this Section 7.5(d) (including any such costs relating to filing any amended Tax Return or other submission) regardless of whether or not any indemnifiable Taxes are required to be paid in connection with or as a result thereof.
(e) The Representative and the Parent Buyer agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the Company and the Company Subsidiaries Companies as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest, other proceeding (including a request for regulatory relief) or the preparation . Seller and filing of amended Tax Returns. The Representative and the Parent Buyer shall reasonably cooperate with each other in the conduct of any Contest, Contest or other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns involving or otherwise relating to any of the Company or the Company Subsidiaries Companies (or their income or assets) with respect to any Tax and each shall execute and deliver such powers of attorney and other documents as are reasonably necessary to carry out the intent of this Section 7.58.6(d). Any information obtained under this Section 7.5 8.6(d) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceeding or as otherwise required by lawproceeding; provided that the party providing such information is notified of the circumstances whereby the information will not be kept confidential.
(fe) Each of Seller and Buyer shall, and shall cause the Parent and the Company shall Companies to, (i) use its all commercially reasonable best efforts to properly retain and maintain the Tax tax and accounting records of the Company and the Company Subsidiaries Companies that relate to any Pre-Closing Tax Periods (or portions thereof) ending on or before the Closing Date until the expiration of the applicable statutes statute of limitations.
limitations (gtaking into account, to the extent notified by Buyer or Seller, any extensions thereof) The Parent and shall promptly notify thereafter provide the Representativeother party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records to the other party upon such party’s written request prior to any such destruction, abandonment or disposition, and (iii) allow the Representative shall promptly notify other party and its Affiliates and their respective agents and representatives, at times and dates reasonably and mutually acceptable to the Parentparties, in writing within 30 Business Days to from time to time inspect and review such records as the receipt of notice of any pending or threatened Tax audits or assessments of the Company or any Company Subsidiary, with respect to which the notifying other party may seek reasonably deem necessary or appropriate; provided, however, that in all cases, such activities are to be indemnified under Section 7.1conducted during normal business hours and at the other party’s sole expense. Failure to notify the indemnifying party Any information obtained under this Section 7.5(g8.6(e) shall not relieve the indemnifying party from its obligations under Section 7.1be kept confidential, except to as may be otherwise necessary in connection with the extent filing of Tax Returns or in the conduct of a Contest or other Tax proceeding; provided that the indemnifying party shall have been actually prejudiced as a result providing such information is notified of such failure. In that case, the amount circumstances whereby the indemnifying party is otherwise required to pay under Section 7.1 shall information will not be reduced by the amount determined pursuant to the preceding sentencekept confidential.
Appears in 1 contract
Tax Audits and Contests; Cooperation. (ai) After the Closing Date, except as provided in (b), (cii) and (diii) below, the Parent Purchaser shall control the conduct, through counsel of its own choosing and at its own expensechoosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the Companies or the Operating Company or any of the Company Subsidiaries (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”).
(bii) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates solely to Taxes for which any of the Parent Indemnitees Purchaser is entitled to be indemnified under Section 7.1 and which are not reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary13.2(a), the Representative Sellers shall control the conduct of such Contest, but the Parent Purchaser shall have the right to participate in such Contest at its own expense, and the Representative Sellers shall not be able to settle, compromise and/or concede any portion of such Contest that is reasonably likely to affect the Tax liability of the Companies or the Operating Company for any taxable year (or portion thereof) beginning after the Closing Date without the reasonable consent of the ParentPurchaser, which consent shall not be unreasonably withheld or delayed; provided that, that if the Representative fails or declines Sellers fail to assume control of the conduct of any such Contest within a reasonable period following the receipt by the Representative Sellers of notice of such Contest, the Parent Purchaser shall have the right to assume control of such Contest but the Representative and shall have the right to participate in such Contest at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest that is likely to result in a claim for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayedits sole discretion.
(ciii) Subject to paragraph (d) below, in In the case of a Contest after the Closing Date that relates both to Taxes for which any of the Parent Indemnitees Purchaser is entitled to be indemnified under Section 7.1 13.2(a) and either (i) to Taxes for which the Parent Indemnitees are Purchaser is not indemnified under Section 7.1, or (ii) to any Taxes reportable on any combined, consolidated, or unitary Tax Return that includes any entity other than the Company or a Company Subsidiary13.2(a), the Parent Purchaser shall control the conduct of such Contest, but the Representative Sellers shall have the right to participate in such Contest at its own expense, and with respect to any Tax for which the Parent is indemnified under Section 7.1, the Parent Purchaser shall not settle, compromise and/or concede such Contest without the consent of the RepresentativeSellers, which consent shall not be unreasonably withheld or delayed.
(div) Notwithstanding anything to In the contrary case of a Tax that is contested in accordance with the provisions of this Section 7.513.10, payment of such contested Tax will not be considered due earlier than the Representative shalldate a “final determination” to such effect is made by such Governmental Body or a court. For this purpose, at its sole expense (includinga “final determination” shall mean a settlement, for the avoidance of doubtcompromise, reasonable expenses incurred by the Company or any Company Subsidiary in cooperating other agreement with the Representative or relevant Governmental Body, whether contained in filing any amended Tax Return an IRS Form 870 or other submission)comparable form, control or otherwise, such as a closing agreement with the portion relevant Governmental Body, an agreement contained in IRS Form 870-AD or other comparable form, an agreement that constitutes a “determination” under Section 1313(a)(4) of the Code, a deficiency notice with respect to which the period for filing a petition with the Tax Court or the relevant state, local or foreign tribunal has expired or a decision of any Contest, or any other proceeding with any Governmental Authority, court of competent jurisdiction that relates to Taxes for which any of the Parent Indemnitees is entitled to be indemnified under Section 7.1(a) as a result of a breach of the representations and warranties set forth in Section 3.13(l), provided that, (i) not subject to such control, following the execution of this Agreement, the Representative shall consult with the Parent and its counsel with regard appeal or as to the conduct of any such Contest or proceeding, shall keep the Parent and the Company informed of any proceedings, events and developments in connection therewith, shall provide the Parent and the Company copies of all substantive correspondence and documents relating thereto (including, for the avoidance of doubt, any substantive correspondence and documents relating to procedural aspects of any such Contest or proceeding), and shall, to the extent reasonably practical, provide the Parent, the Company and the Parent’s counsel the opportunity to review and comment in advance on substantive submissions to any Governmental Authority in connection therewith, and (ii) the Representative shall have the right to settle, compromise and/or concede that portion of any such Contest or proceeding without consent of the Parent unless any such action taken by the Representative would have an adverse effect on any of the Parent Indemnitees for which the affected party is not indemnified pursuant to Section 7.1(a). If the Representative fails or declines to assume control of the conduct of any such Contest or proceeding within ten (10) Business Days following the receipt by the Representative of any notice of such a Contest or proceeding, the Parent shall have the right to assume control of such Contest or proceeding but the Representative shall have the right to participate in such Contest or proceeding at its own expense and the Parent shall not be able to settle, compromise and/or concede any portion of such Contest or proceeding that is likely to result in a claim time for indemnification hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Agreement, the Parent Indemnitees shall be indemnified as provided in Section 7.1(a) for all reasonable fees and costs (including reasonable outside professional fees and costs) incurred in the control of any Contest or proceeding governed by this Section 7.5(d) (including any such costs relating to filing any amended Tax Return or other submission) regardless of whether or not any indemnifiable Taxes are required to be paid in connection with or as a result thereofappeal has expired.
(ev) The Representative Sellers and the Parent Purchaser agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the Company Companies, the Purchased Equity Interests and the Company Subsidiaries Bulk Gas Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest, other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns. The Representative Sellers and the Parent Purchaser shall reasonably cooperate with each other in the conduct of any Contest, Contest or other proceeding (including a request for regulatory relief) or the preparation and filing of amended Tax Returns involving or otherwise relating to the Company Companies or the Operating Company Subsidiaries (or their income or assets) with respect to any Tax and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 7.513.10(a)(v). Any information obtained under this Section 7.5 13.10(a)(v) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceeding or as otherwise required by lawproceeding.
(fvi) Each of the Parent Purchaser and the Company Companies, on the one hand, and the Sellers and the other hand, shall (a) use its their reasonable best efforts to properly retain and maintain the Tax tax and accounting records of the Company Companies and the Operating Company Subsidiaries that relate to any Pre-Closing Tax Periods for six (6) years and shall thereafter provide each other with written notice prior to any destruction, abandonment or portions thereof) ending on or before the Closing Date until the expiration disposition of the applicable statutes of limitations.
(g) The Parent shall promptly notify the Representative, and the Representative shall promptly notify the Parent, in writing within 30 Business Days from the receipt of notice of any pending or threatened Tax audits or assessments of the Company all or any Company Subsidiaryportions of such records, with respect (b) transfer such records to which each other upon written request prior to any such destruction, abandonment or disposition and (c) allow each others and their Affiliates and their respective agents and representatives, at times and dates reasonably and mutually acceptable to the notifying party parties, to from time to time inspect and review such records as they may seek deem necessary or appropriate; provided, however, that in all cases, such activities are to be indemnified under Section 7.1conducted during normal business hours and at the reviewing party’s sole expense. Failure to notify the indemnifying party Any information obtained under this Section 7.5(g13.10(a)(vi) shall not relieve the indemnifying party from its obligations under Section 7.1be kept confidential, except to as may be otherwise necessary in connection with the extent that filing of Tax Returns or in the indemnifying party shall have been actually prejudiced as conduct of a result of such failure. In that case, the amount the indemnifying party is otherwise required to pay under Section 7.1 shall be reduced by the amount determined pursuant to the preceding sentenceContest or other Tax proceeding.
Appears in 1 contract
