Tax Contests. (a) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed. (b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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. (c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Tax Contests. (a) After Each of the Buyer and the Sellers shall promptly notify the other in writing upon receipt of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments which may materially affect the Tax liabilities of any Target or any Subsidiary relating to any Pre-Closing Period or Straddle Period.
(b) The Sellers shall have the sole right to and shall represent the interests of the Targets and Subsidiaries in any Tax audit or administrative or court proceeding relating to any Tax for any Pre-Closing Tax Period (including the portion of any Straddle Period ending as of the applicable Closing Date), HNC and JVOI the Sellers shall jointly control reimburse all out-of-pocket costs reasonably incurred by the conductBuyer (including reasonable fees and expenses of outside counsel) in connection therewith. The Buyer shall have the sole right to and shall represent the interests of the Targets and the Subsidiaries in any Tax audit or administrative or court proceeding relating to any Tax for any Post-Closing Tax Period (including the portion of any Straddle Period beginning after the applicable Closing Date), through and to employ counsel of their own choosingchoice, all at the Buyer’s sole cost and expense. Notwithstanding the foregoing, (i) the Sellers shall not be entitled to settle, either administratively or after the commencement of litigation, any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund regarding Taxes with respect to any Tax Return of any Target or Subsidiary that would increase the HNC Business liability of the Buyer (or the Schnitzer Business relating any Target or Subsidiary) for Taxes hereunder or that, if settled, would reasonably be expected to Pre-Closing Taxable Periods result in REIT II or Straddle Periods (any such audit, claim for refund, or proceeding relating ACC REIT ceasing to an asserted Tax liability referred to herein qualify as a “Contest”REIT or becoming liable for Taxes under Code Sections 856(c)(7)(C). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to857(b)(5), settle857(b)(6), compromise and/or concede any portion of such Contest 857(b)(7), 857(f), 860(c) or 4981 without the prior written consent of the other party, which Buyer (such consent shall not to be unreasonably withheld or delayed.
); and (bii) HNC and JVOI the Buyer shall furnish not be entitled to settle, either administratively or cause to be furnished to each otherafter the commencement of litigation, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) claim regarding Taxes with respect to any Tax and each party shall execute and deliver such powers Return of attorney and other documents as are necessary to carry out any Target or Subsidiary that would increase the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records liability of the HNC Business and Sellers for Taxes hereunder without the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide prior written consent of the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of Sellers (such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are consent not to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns unreasonably withheld or in the conduct of a Contest or other Tax proceedingdelayed).
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Campus Communities Operating Partnership LP)
Tax Contests. (a) After Promptly (and in any case within twenty (20) calendar days) after the Closing DateCompany becomes aware of the existence of an Tax issue that may give rise to an indemnification claim under Section 7.6(n) and/or 8.1(a) (a “Tax Controversy”) by any Buyer Indemnified Party against Seller, HNC Buyer or the Company shall notify Seller of such Tax Controversy and JVOI thereafter shall jointly control promptly forward to Seller copies of the conduct, through counsel of their own choosing, relevant portion of any notice or other document received from any Governmental Entity and communications with any Governmental Entity relating to such Tax Controversy; provided, however, that the failure of the notified party to give the other party notice as provided herein shall not relieve such other party of its obligations under Sections 7.6(n) and 8.1(a), except to the extent that such other party is actually and materially prejudiced thereby.
(b) Notwithstanding anything to the contrary contained in this Agreement, Seller shall have the ability to elect to solely control and make all decisions regarding interests in any Tax audit, hearing, proposed adjustment, arbitration, deficiency, assessment, suit, dispute, claim for refund, or other administrative or judicial proceeding involving any asserted (a “Tax liability or refund Contest”) relating to Taxes with respect to the HNC Business or the Schnitzer Business relating Tax Returns subject to Section 7.6(a) and Section 7.6(b), including any Pre-Closing Taxable Periods Consolidated Income Tax Return and any Pre-Closing Separate Tax Return, including selection of counsel and selection of a forum for such Tax Contest; provided, however, that in connection with any Tax Contest with respect to any Pre-Closing Non-Income Taxes (i) Seller irrevocably agrees to indemnify Buyer and its Affiliates for all Losses arising or Straddle Periods resulting from such Tax Contest, (ii) the Company shall have the right (but not the obligation) to participate in (but not control) such Tax Contest, and (iii) Seller or its Affiliates shall not discharge, settle or otherwise dispose of any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the prior written consent of Buyer, not to be unreasonably withheld, conditioned or delayed, if such discharge, settlement or disposition would reasonably be expected to adversely affect Buyer or its Affiliates in any taxable period other than a Pre-Closing Tax Period. The Company shall control the other partyconduct and resolution of any Tax Contest relating to Taxes required to be shown on any Straddle Income Tax Return or any Straddle Non-Income Tax Return of any member of the Company Group, provided, however, that (A) the Company and Seller shall cooperate in the conduct of each such Tax Contest, (B) Seller shall have the right (but not the obligation) to participate in (but not control) such Tax Contest, (C) the Company shall keep Seller informed of all developments with respect to such Tax Contest on a timely basis, and (D) the Company shall not enter into any agreement with the relevant Governmental Entity pertaining to such Tax Contest without the prior written consent of Seller, which consent shall not unreasonably be unreasonably withheld withheld, conditioned or delayed.
(b) HNC . Each party shall bear its own costs incurred in participating in any proceeding relating to any Tax Contest. The Company and JVOI Seller shall furnish execute and deliver, or cause to be furnished to each otherexecuted and delivered, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with or appropriate to give effect to the filing of Tax Returns or in the conduct of a Contest or other Tax proceedingforegoing.
(c) Each To the extent any provision of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 8.8 is in conflict with any other provision in this Agreement, the provisions of this Section 8.8 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 proceedinggovern.
Appears in 1 contract
Sources: Stock Purchase Agreement (Avaya Inc)
Tax Contests. (a) After If any taxing authority asserts a Tax Claim for which the Closing Datenon-recipient is liable, HNC then the party to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties to this Agreement. Such notice shall specify in reasonable detail the basis for such Tax Claim and JVOI shall jointly control include a copy of the conduct, through counsel of their own choosing, relevant portion of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to correspondence received from the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayedtaxing authority.
(b) HNC In the case of a Tax Proceeding of or with respect to (i) any Retained Asset, Retained Liability and/or Retained Businesses only or (ii) the assets or operations of the Transferred Entities, the Business Assets, the Business Liabilities and/or the Business for any Pre-Closing Period which could reasonably be expected to result in an indemnity obligation of Parent or another member of the Parent Group, Parent shall have the right, but not the obligation, to control such Tax Proceeding. The applicable Purchaser(s) shall control the conduct of any such Tax Proceeding which Parent elects not to control. The party controlling any such Tax Proceeding or, in the case of any Tax Proceeding not described in the first sentence of this subparagraph (b) but which would reasonably be expected to have a material adverse impact with respect to Parent’s or its Affiliates’ compliance with the REIT Requirements, the applicable Purchaser(s), shall defend and JVOI prosecute such Tax Proceedings diligently in good faith at its sole cost and expense and shall furnish not enter into any compromise or settlement of any such Tax Proceeding, to the extent such compromise or settlement could reasonably be expected to have an adverse impact on the applicable non-controlling party or parties (including, for the avoidance of doubt, any adverse impact with respect to Parent’s or its Affiliates’ compliance with the REIT Requirements), without the prior written consent of the applicable non-controlling party or parties, such consent not to be unreasonably withheld, conditioned or delayed. The controlling party shall keep the applicable non-controlling party or parties (x) informed of all developments and events relating to such Tax Proceeding, (y) provide or cause to be furnished provided to each other, upon request, as promptly as practicable, such the applicable non-controlling party any information (including access to books and records) and assistance reasonably requested relating to such Tax Proceeding, and (z) provide to the HNC Business applicable non-controlling party the right to participate in and attend any meetings or conferences with the Schnitzer Business as is reasonably requested for relevant taxing authority at its sole cost and expense.
(c) Notwithstanding anything to the filing of contrary in this Agreement, Parent shall have the exclusive right to control in all respects, and Purchasers and their respective Affiliates shall not be entitled to participate in, any Tax Returns Proceeding with respect to (i) any Tax Return solely of Parent or a member of the Parent Group; and (ii) any Combined Tax Return; provided, that, notwithstanding anything to the preparationcontrary herein, prosecution, defense Parent shall not enter into any compromise or conduct settlement of such Tax Proceeding (excluding any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise Tax Proceeding relating to an IRS Form 1120-REIT or successor form or similar state or local Tax Return), to the HNC Business extent such compromise or settlement could reasonably be expected to have an adverse impact on the Schnitzer Business applicable non-controlling party or parties, without the prior written consent of the applicable non-controlling party or parties (with such consent not to be unreasonably withheld, conditioned or their income or assetsdelayed).
(d) Notwithstanding anything to the contrary in Section 6.11 and Section 11.4, the provisions of this Section 8.3 shall exclusively govern with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Claim and/or Tax Returns or in the conduct of a Contest or other Tax proceedingProceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Tax Contests. If any Governmental Entity issues to the Company (a) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel a written notice of their own choosing, of any audit, claim for refund, its intent to audit or administrative or judicial proceeding involving any asserted Tax liability or refund conduct another Proceeding with respect to Taxes of the HNC Business or the Schnitzer Business relating to Company for any Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refundTax Period, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI a written notice of deficiency for Taxes for any Pre-Closing Tax Period, the Buyer shall furnish notify the Seller of its receipt of such communication from the Governmental Entity within 30 days of receipt. The Buyer shall control any audit 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing other Proceeding in respect of any Tax Returns and the preparation, prosecution, defense Return or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records Taxes of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, Company (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatea “Tax Contest XE "Tax Contest" ”); provided, however, that (i) the Seller, at the Company’s sole cost and expense, shall have the right to control or participate in all casesany such Tax Contest to the extent it relates to a Pre-Closing Tax Period, (ii) the Seller, at the Company’s sole cost and expense, shall have the right to participate in any such activities are Tax Contest to the extent it relates to a Straddle Period, and (iii) the Buyer shall not allow the Company to settle or otherwise resolve any Tax Contest if such settlement or other resolution relates to Taxes for a Pre-Closing Tax Period without the prior written permission of the Seller (which will not be conducted during normal business hoursunreasonably withheld, delayed, or conditioned). Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with If the filing of Tax Returns or in the conduct Seller assumes control of a Tax Contest, it shall not settle or resolve any such Tax Contest that could result in a Buyer Indemnified Party incurring a Tax that is not (A) Taxes of the Company for any Pre-Closing Tax Period, and (B) all Taxes (excluding Transfer Taxes) of the Seller without the prior written consent of the Buyer (which shall not be unreasonably withheld, delayed, or other Tax proceedingconditioned).
Appears in 1 contract
Tax Contests. (ai) After Buyer shall notify Seller within ten (10) business days of a Tax Proceeding for a Pre-Closing Tax Period with respect to a Transferred Company, provided that the failure to so notify Seller shall not affect Seller’s indemnification obligation under Section 7.08(c) except to the extent of any material prejudice actually incurred by Seller.
(ii) With respect to any Tax Proceeding relating to (A) a Pre-Closing Tax Period with respect to a Transferred Company, the Transferred Assets or the Business (other than a Straddle Period or a Tax Proceeding with respect to any Transfer Taxes or VAT, but including any Tax Proceeding with respect to any VAT for which Seller is responsible pursuant to Section 2.06(e)) or (B) a consolidated Tax Return of which Seller or any of its subsidiaries (other than a Transferred Company) is the common parent, Seller may choose in its sole discretion (at its expense) to control all Tax Proceedings and may make all decisions taken in connection with such Tax Proceeding (including selection of counsel), and, without limiting the foregoing, may, in its sole discretion, pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect thereto, and may, in its sole discretion, either pay the applicable Tax liability and ▇▇▇ for a refund or contest the Tax at issue in such Tax Proceeding, provided that, to the extent such Tax Proceeding or the resolution or settlement thereof could have an impact on Buyer or any of its Affiliates (including the Transferred Companies) after the Closing Date, HNC (x) Seller shall provide Buyer with a timely and JVOI reasonably detailed account of each phase of such Tax Proceeding and shall jointly control the conduct, through counsel of their own choosing, of consult with Buyer before taking any audit, claim for refund, or administrative or judicial proceeding involving any asserted significant action in connection with such Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods Proceeding and (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them y) Seller shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyBuyer, which consent shall not be unreasonably withheld or delayedwithheld.
(biii) HNC With respect to any Tax Proceeding relating to a Straddle Period with respect to a Transferred Company, the Transferred Assets or the Business, Buyer may choose in its sole discretion (at its expense) to control all Tax Proceedings and JVOI shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, may make all decisions taken in connection with such information Tax Proceeding (including access selection of counsel), and, without limiting the foregoing, may, in its sole discretion, pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect thereto, and may, in its sole discretion, either pay the applicable Tax liability and ▇▇▇ for a refund or contest the Tax at issue in such Tax Proceeding, provided that, to books the extent such Tax Proceeding or the resolution or settlement thereof could have an impact on Seller or any of its Affiliates with respect to the Pre-Closing Tax Period resulting in an increase of Seller’s liability for Taxes pursuant to this Agreement, (x) Buyer shall provide Seller with a timely and recordsreasonably detailed account of each phase of such Tax Proceeding and shall consult with Seller before taking any significant action in connection with such Tax Proceeding and (y) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld.
(iv) Except as otherwise provided in Section 7.08(d)(ii) and assistance relating Section 7.08(d)(iii), Buyer shall exclusively control all Tax Proceedings with respect to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving Transferred Companies or otherwise relating to the HNC Business Transferred Assets or the Schnitzer Business (or their income or assetsBusiness. Notwithstanding anything in Section 7.08(d)(ii) with respect to the contrary, Buyer shall have the exclusive right to control any Tax Proceeding described in Section 7.08(d)(i) if Seller fails to, or notifies Buyer in writing that Seller elects not to, defend such Tax Proceeding.
(v) Buyer, the Transferred Companies and each of their respective Affiliates, on the one hand, and Seller and its respective Affiliates, on the other hand, shall cooperate in contesting any Tax Proceeding, which cooperation shall include the retention and, upon request, the provision to the requesting party of records and information which are reasonably relevant to such Tax Proceeding, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Proceeding. Buyer and Seller shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b7.08(d). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cardinal Health Inc)
Tax Contests. (a) After If any taxing authority asserts a Tax Claim, then the Closing Dateparty to this Agreement first receiving notice of such Tax Claim promptly shall provide prompt written notice thereof to the other party; provided, HNC and JVOI however, that the failure of such party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other party of any auditof its obligations under this Article VII, claim except to the extent that the other party is prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the taxing authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Business Transferred Entities for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 7.6(d)), Seller shall have the exclusive right to Pre-Closing Taxable Periods or Straddle Periods control such Tax Proceeding; provided, however, that Seller shall (any i) defend such auditTax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates (ii) not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyPurchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
, if such settlement, compromise or abandonment could have a material adverse impact on Purchaser or any of its Affiliates for any Post-Closing Period or would reasonably be expected to materially increase Taxes for which Purchaser is responsible under Section 7.2,and (biii) HNC permit Purchaser and JVOI shall furnish its representatives, at their sole cost and expense, to participate in such Tax Proceeding and attend any meetings or cause to be furnished to each otherconferences with the relevant taxing authority; provided, upon requestfurther, as promptly as practicablehowever, that any such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparationsettlement, prosecution, defense compromise or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other abandonment resulting in the conduct of any Contest reduction or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct elimination of a Contest Tax Asset of a Transferred Entity existing as of the Closing shall not for this purpose be considered as having a material adverse impact on Purchaser or other Tax proceedingany of its Affiliates for any Post-Closing Period.
(c) Each In the case of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts a Tax Proceeding of or with respect to properly retain and maintain the Tax and accounting records any of the HNC Business Transferred Entities for any Straddle Period (other than a Tax Proceeding described in Section 7.6(d)), the Controlling Party shall have the right and the Schnitzer Business that relate obligation to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective agents and representativesconduct, at times and dates reasonably and mutually acceptable to the partiesits own expense, to from time to time inspect and review such records as such other party may deem necessary or appropriateTax Proceeding; provided, however, that in all cases(i) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c(ii) the Controlling Party shall be kept confidential, except as may be otherwise necessary consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the filing Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and attend any meetings or conferences with the relevant taxing authority, and (vi) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, further, however, that the Controlling Party shall not have any obligations (and the Non-Controlling Party shall not have any rights) under clause (i), (ii), (iii) or (v) above with respect to any portion of such Tax Returns Proceeding (and any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of its Affiliates. For purposes of this Agreement, “Controlling Party” shall mean Seller if Seller and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Tax Proceeding, or Purchaser if Purchaser and its Affiliates are reasonably expected to bear the conduct greater Tax liability in connection with such Tax Proceeding; and “Non-Controlling Party” means whichever of a Contest Seller or other Purchaser is not the Controlling Party with respect to such Tax proceedingProceeding.
Appears in 1 contract
Tax Contests. (a) After If any Taxing Authority asserts a Tax Claim, then the Closing Date, HNC and JVOI party to this Agreement first receiving notice of such Tax Claim promptly shall jointly control provide written notice thereof to the conduct, through counsel other party to this Agreement; provided that the failure of their own choosing, such party to give such prompt notice shall not relieve the other party of any auditof its obligations under this Article VI, claim except to the extent that the other party is prejudiced by such failure (as determined by a court of competent jurisdiction). Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Business Purchased Controlled Companies for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 6.6(d)), Seller shall have the exclusive right to Pre-Closing Taxable Periods or Straddle Periods control such Tax Proceeding; provided that (any i) Seller shall keep Purchaser reasonably informed of the status of such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallProceeding, and each of them (ii) Seller shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion such Tax Proceeding without obtaining the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement, compromise or abandonment would have a non-de minimis impact on Purchaser or any of its Affiliates for a Post-Closing Period. Seller may elect in writing not to control any Tax Proceeding that Seller otherwise has the right to control pursuant to the preceding sentence. If Seller makes such election with respect to a Tax Proceeding, Purchaser shall have the right and obligation to conduct, at its own expense, such Tax Proceeding, and the provisions of Section 6.6(c) shall apply, mutatis mutandis (substituting all references therein to “the Controlling Party” with “Purchaser” and all references therein to “the Non-Controlling Party” with “Seller”), with respect to such Tax Proceeding.
(c) In the case of a Tax Proceeding of or with respect to (i) any of the Purchased Controlled Companies for any Straddle Period (other than a Tax Proceeding described in Section 6.6(d)) or (ii) both Excluded Business Taxes and Taxes that are not Excluded Business Taxes (and such Tax Proceeding for Taxes that are Excluded Business Taxes is not separable from such Tax Proceeding for Taxes that are not Excluded Business Taxes), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided, that (A) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Contest Tax Proceeding and allow the Non-Controlling Party to participate in any such Tax Proceeding, (B) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (C) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (D) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, and (E) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the other partyNon-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC . For purposes of this Section 6.6(c): “Controlling Party” shall mean Purchaser; and JVOI “Non-Controlling Party” shall furnish or cause to be furnished to each othermean Seller. For the avoidance of doubt, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI Purchaser shall reasonably cooperate with each other have no rights under this Agreement in the conduct case of any Contest a Tax Proceeding of or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Purchased Non-Consolidated Ventures for any Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records Period except to the other party upon its written request prior to extent that Purchaser has any such destruction, abandonment or disposition and (iii) allow the other party and their respective agents and representatives, at times and dates reasonably and mutually acceptable rights pursuant to the parties, to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing terms of Tax Returns or in the conduct of a Contest or other Tax proceedingany applicable Purchased Venture Governing Documents.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Tax Contests. Purchaser shall promptly notify NewCo of Purchaser’s (aor any Group Company’s) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, receipt of any written notice from a Governmental Authority of any pending or threatened audit, claim for refundinvestigation, or administrative or judicial proceeding involving other Proceeding of any asserted Tax liability or refund with member of the Group Companies in respect to the HNC Business or the Schnitzer Business relating to of Pass-Through Taxes for a Pre-Closing Taxable Periods Tax Period or Straddle Periods Period (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”). Neither HNC nor JVOI shallNewCo shall control any Tax Contest (other than any Tax Contest that relates to a Straddle Period); provided that (i) Purchaser shall have the right to participate in any such Tax Contest controlled by NewCo (at Purchaser’s sole cost and expense), (ii) NewCo shall keep Purchaser reasonably informed of the status of any such Tax Contest (including by providing Purchaser with copies of all material written correspondence regarding such Tax Contest), and each of them (iii) NewCo shall cause its Affiliates not to, settleabandon, compromise and/or concede or settle any portion of such Tax Contest without the consent of the other party, Purchaser (which consent shall not be unreasonably withheld withheld, conditioned or delayed.
). Purchaser shall control any Tax Contest that relates to a Straddle Period; provided that (bx) HNC NewCo shall have the right to participate in any such Tax Contest controlled by Purchaser (at NewCo’s sole cost and JVOI expense), (y) Purchaser shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, keep NewCo reasonably informed of the status of any such information Tax Contest (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing by providing NewCo with copies of any all written correspondence regarding such Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and (z) Purchaser shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods not abandon, compromise or Straddle Periods and shall provide the other 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 its written request prior to settle any such destructionTax Contest without the consent of NewCo (which shall not be unreasonably withheld, abandonment conditioned or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingdelayed).
Appears in 1 contract
Tax Contests. (ai) After In the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, event any Taxing Authority informs Seller or Purchaser of any auditTax Claim related to the Business, claim the Purchased Assets or the Assumed Liabilities for refunda Pre-Closing Tax Period or a Straddle Period, the party so informed shall provide written notice to the other party of such Tax Claim; provided, that failure to promptly notify shall not reduce the other party’s indemnity obligation hereunder, except to the extent such party’s ability to defend against such Tax Claim is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(ii) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any Excluded Taxes (other than a Tax Proceeding described in Section 5.4(h)(iv)), Seller shall have the HNC Business or the Schnitzer Business relating exclusive right to Pre-Closing Taxable Periods or Straddle Periods (any control such auditTax Proceeding; provided, claim for refundhowever, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them that Seller shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion such Tax Proceeding without obtaining the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement, compromise or abandonment would have an adverse impact on Purchaser for any Post-Closing Tax Period.
(iii) In the case of a Tax Proceeding of or with respect to Taxes that are Excluded Taxes and Taxes that are not Excluded Taxes and such Tax Proceeding for Taxes that are Excluded Taxes is not separable from such Tax Proceeding for Taxes that are not Excluded Taxes, the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided, however, that (i) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Contest Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, and (v) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the other partyNon-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC . For purposes of this Agreement, “Controlling Party” shall mean Seller if Seller and JVOI shall furnish its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Tax Proceeding, or cause Purchaser if Purchaser and its Affiliates are reasonably expected to be furnished to each other, upon request, as promptly as practicable, bear the greater Tax liability in connection with such information (including access to books Tax Proceeding; and records) and assistance relating to “Non-Controlling Party” means whichever of Seller or Purchaser is not the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Controlling Party with respect to any such Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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 proceedingProceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Tax Contests. (a) After the Closing DateClosing, HNC each of Parent, on the one hand, and JVOI Holders’ Representative, on the other hand, shall jointly control promptly notify the conduct, through counsel of their own choosing, other Party in writing upon receipt from a Taxing Authority of any written notice of any pending or threatened audit, claim for refundexamination, claim, dispute or administrative or judicial proceeding involving any asserted controversy relating to Taxes (a “Tax liability or refund Claim”) with respect to the HNC Business or the Schnitzer Business relating to Company for a Pre-Closing Taxable Periods Tax Period or Straddle Periods any Losses for which such other Party (or any of its Affiliates) could be liable pursuant to this Agreement; provided, however, the failure to give such audit, claim for refund, or proceeding notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party has been materially prejudiced as a result of such failure.
(b) With respect to any Tax Claim relating to an asserted Taxes or Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI Returns within the scope of Section 5.8.1, the Holders shall, through Holders’ Representative, solely at the Holders’ own cost and each expense, control all proceedings in connection with such Tax Claim (including selection of them counsel); provided, however, Holders’ Representative (on behalf of the Holders) (i) shall cause keep Parent fully informed regarding such Tax Claim, (ii) shall allow Parent and its Affiliates counsel (at Parent’s expense) to participate in (but not to, control the conduct of) the defense of such Tax Claim and (iii) shall not settle, compromise and/or concede any portion of or otherwise resolve such Contest Tax Claim without the written consent of the other partyParent, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(bc) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with With respect to any Tax Claim relating to Taxes or Tax Returns within the scope of Section 5.8.2(a), Parent shall, solely at Parent’s own cost and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidentialexpense, except as may be otherwise necessary control all proceedings in connection with the filing such Tax Claim (including selection of Tax Returns or in the conduct of a Contest or other Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatecounsel); provided, however, that to the extent that any such Tax Claim (i) could reasonably be expected to result in all casesthe Holders being liable for any additional Taxes hereunder, or (ii) concerns the qualification of the Merger as a “reorganization” within the meaning of Section 368(a) of the Code, (x) Parent shall keep Holders’ Representative fully informed regarding such activities are Tax Claim, (y) Holders’ Representative and its counsel (at the Holders’ expense) may participate in (but not control the conduct of) the defense of such Tax Claim, and (z) Parent shall not settle, compromise or otherwise resolve such Tax Claim without the written consent of Holders’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) Any dispute, controversy or claim between Parent and Holders’ Representative with respect to be conducted during normal business hours. Any information obtained under the defense of any Tax Claim, as described in this Section 9.1(c) 5.8.3, 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 proceedingresolved pursuant to Section 5.8.9.
Appears in 1 contract
Sources: Merger Agreement (Invitae Corp)
Tax Contests. (a) After If any Taxing Authority asserts a Tax Claim, then the party to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties to this Agreement; provided, that the failure of such party to give such prompt notice shall not relieve the other party of any of its obligations under this Article VI, except to the extent that the other party is prejudiced by such failure (as determined by a court of competent jurisdiction). Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(b) In the case of a Tax Proceeding of or with respect to any of the Purchased Entities (other than a Tax Proceeding described in Section 6.6(d)), Seller shall have the exclusive right to control such Tax Proceeding to the extent relating to any taxable period ending before the Closing Date; provided, HNC and JVOI that Seller shall jointly not settle, compromise or abandon any such Tax Proceeding (or, as applicable, portion thereof) without obtaining the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement, compromise or abandonment would have a material adverse impact on Purchaser or any of its Subsidiaries for any Post-Closing Period. Seller may elect in writing not to control any Tax Proceeding that Seller otherwise has the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund right to control pursuant to the preceding sentence. If Seller makes such election with respect to a Tax Proceeding, Purchaser shall have the HNC Business right and obligation to conduct such Tax Proceeding (subject to Section 6.1(K)), and the requirements contained in the last sentence of Section 6.6(c) shall apply, mutatis mutandis, to Purchaser with respect to such Tax Proceeding (and Seller shall have such consultation, participation, consent and other rights described in the last sentence of Section 6.6(c) with respect to such Tax Proceeding).
(c) In the case of a Tax Proceeding of or with respect to any of the Schnitzer Business Purchased Entities (other than a Tax Proceeding described in Section 6.6(d)), Seller and Purchaser shall have the right and obligation jointly to conduct, at their own expense (subject to Section 6.1(K) and Section 6.2(H)), such Tax Proceeding to the extent relating to a Straddle Period; provided, that (i) Seller shall have the exclusive right to control the portion of such Tax Proceeding, if any, relating to the treatment of any of the transactions contemplated by Section 5.6 or any pre-closing restructuring transaction (including the Pre-Closing Taxable Periods or Straddle Periods Restructuring), and (ii) the parties shall use commercially reasonable efforts to sever any such audit, claim for refund, or proceeding Tax Proceeding into separate Tax Proceedings relating to an asserted the Pre-Closing Period and Post-Closing Period, respectively. With respect to the portion of any Tax liability referred Proceeding that is jointly controlled, the parties shall cooperate in the conduct of such Tax Proceeding, including by consulting with each other before taking any significant action in connection with such Tax Proceeding, consulting with each other and offering each other the opportunity to herein as a “Contest”). Neither HNC nor JVOI shallcomment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, defending such Tax Proceeding diligently and in good faith, affording each other the opportunity to participate in any meetings or conferences with the relevant Taxing Authority, and each of them shall cause its Affiliates not tosettling, settle, compromise and/or concede compromising or abandoning any portion of such Contest Tax Proceeding without the prior written consent of the other party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(bd) HNC and JVOI shall 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 Notwithstanding anything to the HNC Business contrary in this Agreement, Seller shall have the exclusive right to control in all respects, and the Schnitzer Business as is reasonably requested for the filing neither Purchaser nor any of its Affiliates shall be entitled to participate in, any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Proceeding with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the any Tax and accounting records Return of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Seller or any portions of such records, its Subsidiaries (other than the Purchased Companies); and (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct Return of a Contest consolidated, combined or other unitary group that includes Seller or any of its Subsidiaries (including any Combined Tax proceedingReturn).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cbre Group, Inc.)
Tax Contests. (ai) After If (A) a Governmental Authority asserts a Proceeding for Taxes against any Group Company and (B) Parent or any of its Affiliates (including any Group Company) or Sellers could be responsible for any portion of the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods related Taxes (any such auditclaim, claim for refunda “Tax Claim”), then the Party first receiving notice (whether directly, or proceeding indirectly through an Affiliate of such Party) of such Tax Claim shall promptly provide to Parent, the Surviving Entity and the Representative written notice specifying in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Governmental Authority in respect of such Tax Claim; provided, however, that the failure of such Party to give such prompt and detailed notice shall not relieve the other Party of any of its obligations under this Section 6.2, except if and only to the extent that the other Party is actually and materially prejudiced thereby. Notwithstanding anything to the contrary herein, Parent’s and its Affiliates’ obligations pursuant to this Section 6.2(d) shall only apply if and to the extent that Sellers have any Liability pursuant to Section 9 for the Taxes relating to an asserted such Tax liability referred Claims.
(ii) With respect to herein as a “Contest”any Tax Claim, Parent (and not any Seller or the Representative) shall have the right to control such Tax Claim; provided that (A) Parent shall defend or prosecute the Tax Claim diligently and in good faith, (B) Parent shall keep the Representative reasonably informed of all material developments and events relating to such Tax Claim (including providing to the Representative copies of relevant portions of all written materials relating to such Tax Claim). Neither HNC nor JVOI shall, (C) the Parties shall cooperate with each other and each Party’s representatives in good faith in order to contest effectively such Tax Claim, (D) the Representative or its authorized representative shall be entitled, at the Representative’s expense, to attend and participate in all conferences, meetings and proceedings relating to such Tax Claim, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion (E) if it is reasonably likely that the Sellers will have Liability pursuant to this Agreement arising out of such Contest Tax Claim (or the amounts payable to Sellers contemplated by this Agreement is reasonably likely to be adversely affected by such Tax Claim), Parent shall not, without the prior written consent of the other partyRepresentative, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall furnish , enter into any compromise or cause to be furnished to each other, upon request, as promptly as practicable, settlement of such information (including access to books and recordsTax Claim. To the extent of any conflict between this Section 6.2(d) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparationSection 9.3, prosecution, defense or conduct of any Contest. HNC and JVOI this Section 6.2(d) shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) govern with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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 proceedingClaims.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Merger Agreement (PAE Inc)
Tax Contests. (a) After With respect to any audit, court proceeding or other dispute with respect to any Tax matter (each a “Tax Contest”) that (i) arises in a consolidated, combined or unitary Tax Return that includes a period (or portion thereof) ending before the Closing Date and that includes the Company or the Joint Venture or (ii) otherwise relates to the Company, the Joint Venture, New SLB Mexico or the Transferred Assets for any period (or portion thereof) ending before the Closing Date, HNC STC or Holdings, as appropriate, shall have the right to represent the interests of the Company, the Joint Venture, New SLB Mexico and JVOI shall jointly other members of the Seller Group, to employ counsel of its choice at its expense and to control the conductconduct of such Tax Contest, through including settlement or other disposition thereof; provided, however, that STC or Holdings, as appropriate, shall allow the Purchasers and their counsel of their own choosingto participate in, of but not control, any auditsuch Tax Contest (to the extent that it relates to the Company, claim for refundthe Joint Venture, New SLB Mexico or administrative the Transferred Assets) at the Purchasers’ sole expense, provided, further, that STC or judicial proceeding involving any asserted Tax liability or refund Holdings, as appropriate, shall keep the Purchasers fully and timely informed with respect to the HNC Business commencement, status and nature of any Tax Contest involving any Tax liability of the Company, the Joint Venture or New SLB Mexico or with respect to the Transferred Assets for such taxable periods; provided, further, that if the results of any such Tax Contest (other than a Tax Contest arising under the Code or under any other Law in which the Company is considered a new taxpayer after the Closing Date by virtue of a Section 338(h)(10) Election) involve an issue that (x) recurs in any taxable period (or portion thereof) of the Purchasers, the Company, New SLB Mexico or the Schnitzer Business relating Joint Venture beginning after the Closing Date or (y) otherwise may reasonably be expected to Pre-materially and adversely affect the Purchasers, the Company, the Joint Venture New SLB Mexico or any of their respective Affiliates for any taxable period (or portion thereof) beginning after the Closing Taxable Periods Date, then there shall be no settlement, closing or Straddle Periods (any such audit, claim for refund, or proceeding relating other agreement with respect to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest that issue without the consent of the other such affected party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI . The Purchasers shall furnish or cause have the right 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in control the conduct of any Tax Contest or other proceeding involving or otherwise relating to the HNC Business Company, the Joint Venture, New SLB Mexico or the Schnitzer Business (or their income or assets) Transferred Assets with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out matter arising in a period (or portion thereof) beginning after the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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 proceedingClosing Date.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Purchase Agreement (Itron Inc /Wa/)
Tax Contests. (a) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, of If any audit, Governmental Entity makes a claim for refund, or administrative or judicial commences any proceeding involving any asserted Tax liability or refund with respect to any Tax Liability of the HNC Business Company or the Schnitzer Business relating any of its Subsidiaries that relates to a Pre-Closing Taxable Periods Period, the resolution of which may reasonably be expected to result in an indemnity payment pursuant to Section 7.1, Buyer shall promptly and in any event no more than ten (10) Business Days following Buyer’s (or Straddle Periods any of its Affiliates’, including the Company’s and any of its Subsidiaries’) receipt of notice of such claim, give written notice to Seller of such claim (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “ContestTax Claim”). Neither HNC nor JVOI shall, Such notice shall set forth the same details applicable to a Claim Notice and each also specify in reasonable detail the basis for such Tax Claim and shall include a copy of them shall cause its Affiliates not to, settle, compromise and/or concede any the relevant portion of any correspondence received from the relevant Governmental Entity. Seller shall have the right to control the defense of such Contest Tax Claim. Buyer shall not settle any such Tax Claim without the prior written consent of the other party, Seller (which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall 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 ). In the HNC Business and the Schnitzer Business as is reasonably requested for the filing case of any Tax Returns and Claim, (i) the preparation, prosecution, defense or conduct Party controlling such Tax Claim shall (A) keep the other Party reasonably informed concerning the progress of any Contest. HNC such Tax Claim, (B) provide the other Party with copies of all material correspondence and JVOI shall reasonably cooperate with each other documents relevant to any such Tax Claim and (C) consider in good faith any reasonable comments made by the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Party with respect to any such Tax Claim and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer the other Party shall have the right to participate in the defense of any such records Tax Claim at its own expense separate from the counsel employed by the party controlling such Tax Claim. Notwithstanding anything to the other party upon its written request prior to any such destructioncontrary in this Agreement, abandonment or disposition and (iii) allow the other party and their respective agents and representatives, at times and dates reasonably and mutually acceptable to the partiesextent of any conflict or overlap, the procedures relating to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to Tax Claims shall be conducted during normal business hours. Any information obtained under governed exclusively by this Section 9.1(c5.11(g) and the provisions of Section 7.2 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 proceedingnot apply.
Appears in 1 contract
Tax Contests. (a) After From and after the Closing DateClosing, HNC and JVOI shall jointly control the conductif any Taxing Authority issues to Buyer, through counsel any Purchased Subsidiary or any of their own choosingAffiliates (i) a written notice of its intent to investigate, of audit or conduct any audit, proceeding that could reasonably be expected to give rise to a claim for refundany Covered Taxes or (ii) a written notice of deficiency for Covered Taxes, Buyer shall notify Seller of its receipt of such communication from the Taxing Authority within 10 Business Days of receipt. No failure or administrative delay of Buyer in the performance of the foregoing shall reduce or judicial otherwise affect the obligations or liabilities of Seller pursuant to this Agreement, except to the extent Seller is actually prejudiced by such failure or delay.
(b) Seller, at its sole cost and expense, shall control any investigation, audit or other proceeding involving any asserted solely for a Pre-Closing Tax liability or refund Period (and not with respect to any Straddle Period or portion thereof), including the HNC Business Pending Tax Matters; provided, however that (i) the Seller shall control such investigation, audit or other proceeding in good faith; (ii) the Schnitzer Business Seller shall keep the Buyer reasonably informed regarding the status of such investigation, audit or other proceeding; (iii) the Buyer shall have the right to participate in such investigation, audit or other proceeding; and (iv) the Seller shall not, without the Buyer’s prior written permission (which shall not be unreasonably withheld, delayed, or conditioned), settle, resolve, or abandon such investigation, audit or other proceeding (or any portion thereof) if such settlement, resolution, or abandonment could result in any Purchased Subsidiary or other Buyer Indemnified Party incurring a Tax that will not be fully paid by the Seller pursuant to this Agreement.
(c) Buyer, at its sole cost and expense, shall control all other investigations, audits or other proceedings relating to Taxes or Tax Returns of the Purchased Subsidiaries relating to Pre-Closing Taxable Periods or Straddle Tax Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”including all Straddle Periods). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that (i) the Buyer shall control such investigation, audit or other proceeding in all casesgood faith; (ii) the Buyer shall keep the Seller reasonably informed regarding the status of such investigation, audit or other proceeding; (iii) the Seller shall have the right to participate in such activities are investigation, audit or other proceeding; and (iv) the Buyer shall not, without the Seller’s prior written permission (which shall not be unreasonably withheld, delayed, or conditioned), settle, resolve, or abandon (or allow any Purchased Subsidiary to be conducted during normal business hours. Any information obtained under settle, resolve, or abandon) such investigation, audit or other proceeding (or any portion thereof) if such settlement, resolution, or abandonment could result in a Covered Tax.
(d) Notwithstanding any provision of this Section 9.1(c) shall be kept confidential8.07 to the contrary, except as may be otherwise necessary in connection with the filing of Tax Returns or in Seller shall, at its sole cost and expense, exclusively control the conduct of a Contest any investigation, audit or other proceeding related to Taxes or Tax Returns of a Seller Group; provided, however, that to the extent such investigation, audit or other proceeding could reasonably be expected to affect the Taxes or Tax Returns of any Purchased Subsidiary for a Post-Closing Tax Period, Seller shall keep Buyer reasonably informed regarding the status of such investigation, audit or other proceeding.
Appears in 1 contract
Tax Contests. (a) After If the ITA asserts an Israeli Tax Claim after the Closing, Purchaser shall promptly provide written notice thereof to Seller; provided, that Purchaser’s failure to provide such prompt notice shall not relieve Seller of any of its obligations under Article IX, except to the extent that Seller is actually prejudiced by such failure. Such notice shall specify in reasonable detail the basis for such Israeli Tax Claim and shall include a copy of the relevant portion of any correspondence received from the ITA.
(b) Notwithstanding anything to the contrary in Section 9.4, in the case of a Tax Proceeding of or with respect to any of the Israeli Purchased Entities for any taxable period ending on or before the Closing Date, HNC Seller shall have the exclusive right, at its sole cost and JVOI shall jointly expense, to control all aspects of and represent the conductinterests of the Israeli Purchased Entities in such Tax Proceeding and related communications (any such Tax Proceeding, through counsel of their own choosing, an “Israeli Pre-Closing Tax Proceeding”) (including the submission of any auditwritten materials and the preparation of any Tax Return in connection therewith); provided that, claim for refund(i) Seller shall keep Purchaser reasonably informed as to the progress of any such Tax Proceeding, and (ii) Seller shall not consent to the entry of any judgement, or administrative settle or judicial proceeding involving compromise or discharge any asserted such Israeli Pre-Closing Tax liability Proceeding without the prior written consent of Purchaser (which shall not be unreasonably, withheld, conditioned or refund delayed) if the terms of such judgement, settlement, compromise or discharge would be binding on the relevant Israeli Purchased Entity or any Affiliate thereof with respect to a material Tax position so as to require such Israeli Purchased Entity or any Affiliate thereof, under the HNC Business terms of such judgement, settlement, compromise or discharge, to take such Tax position in a Post-Closing Period (it being agreed and understood that nothing in this clause (ii) of this proviso shall be interpreted to preclude Seller from consenting to the Schnitzer Business relating to entry of any judgement, or settling, compromising or discharging any such Israeli Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein Proceeding without the prior written consent of Purchaser as a result of such action having the effect of (x) reducing any earnings generated by the Israeli Purchased Entities in a Pre-Closing Period or (y) settling or extinguishing any deemed intercompany loan deemed to have been created in a Pre-Closing Period on account of certain intellectual property owned by a U.K. Subsidiary of Seller being deemed as owned by an Israeli Purchased Entity (as asserted by the ITA in connection with item # 1 of Section 3.14 (Taxes) of the Seller Disclosure Schedules)). If Seller does not elect to control and represent the interests of the Purchased Entities with respect to any part of an Israeli Pre-Closing Tax Proceeding, then Purchaser shall have the right and obligation to control such Israeli Pre-Closing Tax Proceeding and the provisions of Section 6.9(c) shall apply, mutatis mutandis to such Israeli Tax Proceeding (substituting all references therein to the “ContestTax Controlling Party” with “Purchaser” and all references therein to the “Tax Non-Controlling Party” with “Seller”). Neither HNC nor JVOI shall.
(c) Notwithstanding anything to the contrary in Section 9.4, in the case of a Tax Proceeding of or with respect to any of the Israeli Purchased Entities for any Straddle Period (an “Israeli Straddle Period Tax Proceeding”), the Tax Controlling Party shall be entitled to control the defense of such Israeli Straddle Period Tax Proceeding; provided that the other party (the “Tax Non-Controlling Party”) shall be entitled to participate fully (at the Tax Non-Controlling Party’s sole cost and expense) in the conduct of such Israeli Straddle Period Tax Proceeding, (ii) the Tax Controlling Party shall provide the Tax Non-Controlling Party with a timely and reasonably detailed account of each stage of such Israeli Straddle Period Tax Proceeding, (iii) the Tax Controlling Party shall consult with the Tax Non-Controlling Party before taking any significant action in connection with such Israeli Straddle Period Tax Proceeding, (iv) the Tax Controlling Party shall consult with the Tax Non-Controlling Party and offer the Tax Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Israeli Straddle Period Tax Proceeding, (v) the Tax Controlling Party shall defend such Israeli Straddle Period Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Israeli Straddle Period Tax Proceeding, and each of them (vi) the Tax Controlling Party shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Israeli Straddle Period Tax Proceeding without obtaining the prior written consent of the other partyTax Non-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC . The reasonable costs and JVOI expenses of conducting the defense of such Israeli Straddle Period Tax Proceeding shall furnish or cause be reasonably apportioned based on the relative amounts of the Taxes at issue in such Israeli Straddle Period Tax Proceeding for which Seller, on the one hand, and Purchaser, on the other hand, are responsible for pursuant to be furnished to each otherthis Agreement. For purposes of this Agreement, upon request“Tax Controlling Party” shall mean Seller, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as if Seller is reasonably requested for expected to bear the filing of any greater Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary liability in connection with such Israeli Straddle Period Tax Proceeding, or Purchaser, if Purchaser is reasonably expected to bear the filing of greater Tax Returns or liability in connection with such Israeli Straddle Period Tax Proceeding. Notwithstanding any provision in the conduct of a Contest Agreement to the contrary, Seller shall not settle, compromise or other abandon any Israeli Straddle Period Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Proceeding or Israeli Pre-Closing Taxable Periods Tax Proceeding in a manner that would be reasonably likely to result in any deemed or Straddle Periods and actual dividend materially reducing earnings of the Israeli Purchased Entities generated in a Post-Closing Period (other than “zero tax” earnings) without obtaining the prior written consent of Purchaser (which consent shall provide the other party with written notice prior to any destructionnot be unreasonably withheld, abandonment conditioned or disposition of all or any portions of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingdelayed).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (PERRIGO Co PLC)
Tax Contests. (a) After the Initial Closing, each of the Purchaser, on the one hand, and the Seller, on the other hand, shall promptly notify the other in writing upon receipt of any written notice of any pending or threatened Tax Contest with respect to Damages for which the Seller could be liable pursuant to this Agreement.
(b) The Seller shall control the defense of all Tax Contests relating to Taxes or Tax Returns within the scope of Section 9.5(a); provided, however, that if the resolution of such Tax Contest could increase the Taxes of any Acquired Company or Purchaser for periods ending after the Initial Closing Date, HNC then (i) Purchaser and JVOI shall jointly its counsel (at Purchaser’s expense) may participate in (but not control the conduct, through counsel of their own choosing, conduct of) the defense of any auditsuch Tax Contest, claim for refund, and (ii) Seller may not settle or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (compromise any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest covered by the preceding clause (i) without the consent of the other partyPurchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(bc) HNC and JVOI The Purchaser shall 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 control the defense of all Tax Contests relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Taxes or Tax Returns and within the preparation, prosecution, defense or conduct scope of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b9.5(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that (i) the Seller and its counsel (at the expense of the Seller) may participate in (but not control the conduct of) the defense of any such Tax Contest, and, (ii) the Purchaser may not settle or compromise any such Tax Contest covered by the preceding clause (i) without the consent of the Seller, which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Purchaser shall control the defense of all cases, such activities are Tax Contests relating to be conducted during normal business hoursTaxes or Tax Returns within the scope of Section 9.5(c). Any information obtained under dispute, controversy or claim between the Purchaser and the Seller with respect to the defense of any Tax Contest, as described in this Section 9.1(c) 9.6, 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 proceedingresolved pursuant to Section 9.7.
Appears in 1 contract
Tax Contests. (ai) After Parent and the Closing Date, HNC and JVOI Stockholder Representative shall jointly control the conduct, through counsel promptly notify each other in writing upon receipt by such party or any of their own choosing, respective Affiliates of notice of any auditpending or threatened federal, claim for refundstate, local or foreign audits, examinations, claims, assessments or administrative or judicial court proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Taxes of the Company for any Pre-Closing Taxable Periods or Straddle Periods Tax Period (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that the failure to promptly notify the Stockholder Representative shall not limit Parent’s indemnification obligations pursuant to this Agreement, except to the extent that any delay in all casesnotification actually and materially prejudices the other party.
(ii) Notwithstanding Article VII, subject to the consent rights of any insurer or any other limitations in the R&W Insurance Policy, to the extent the Participating Equityholders could be held liable for a majority of the Taxes with respect to Pre-Closing Tax Periods arising as a result of the relevant Tax Contest under the provisions of this Agreement (and taking into account the R&W Insurance Policy and the Indemnity Limits), then:
(A) the Stockholder Representative shall have the right, in good faith, to control and to direct such activities are Tax Contest and to employ counsel of its own choice for such purpose; provided, however, Parent shall be conducted during normal business hoursentitled to participate at its expense in or with respect to any such Tax Contest. Any information obtained The Stockholder Representative shall have the right to settle or compromise, or agree to settle or compromise, either administratively or after the commencement of litigation, any Tax Contest for any Tax Contest that it is entitled to control under this Section 9.1(c) 6.8(d)(ii)(A); provided, however, no such settlement, compromise or agreement shall be kept confidentialeffectuated without Parent’s prior written consent, except as which shall not be unreasonably withheld, delayed or conditioned.
(B) Parent and Stockholder Representative shall have the right, in good faith, to jointly control and to represent the interests of the Company in and with respect to any Tax Contest for any Straddle Period; provided, however, that neither party may settle or compromise, or agree to settle or compromise, either administratively or after the commencement of litigation, any Tax Contest for any Straddle Period without the prior written consent of both parties, which shall not be otherwise necessary unreasonably withheld, delayed or conditioned.
(iii) Parent shall control all other proceedings in connection with respect Taxes of each member of the filing of Tax Returns or Company Group and the Stockholder Representative shall have no right to participate in the conduct of a Contest or other Tax proceedingany such proceedings.
Appears in 1 contract
Sources: Merger Agreement (Take Two Interactive Software Inc)
Tax Contests. (ai) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, If any Tax Authority asserts a Tax Claim in respect of any auditTax described in clauses (i), claim (ii) and (iii) of Section 7.19(a) or clauses (i), (ii) and (iii) of Section 7.19(b), then a Party to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other Party or Parties to this Agreement; provided, that the failure of such Party to give such prompt notice shall not affect the rights of such Party or relieve any other Party of any of its obligations under this Section 7.19, except to the extent that the other Party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for refundsuch Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Tax Authority.
(ii) While the indemnities in Section 7.19(a) remain in effect, or administrative or judicial proceeding involving the Everest Sellers shall have the sole right to control any asserted Tax liability or refund Proceeding to the extent that it relates to any Tax that is an Excluded Tax described in clauses (i), (ii) and (iii) of Section 7.19(a); provided, that (A) the Everest Sellers shall inform Purchaser in a timely manner and in reasonable detail about the conduct of such Tax Proceeding; (B) the Everest Sellers shall consider in good faith any reasonable comments provided by Purchaser with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion conduct of such Contest Tax Proceeding; (C) the Everest Sellers shall not, without the Purchaser’s consent of the other party, (which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall furnish or cause ), agree 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) settlement with respect to any Tax Proceeding if such settlement would reasonably be expected to adversely affect the Tax liability of any Purchaser Tax Indemnitee (taking into account Sellers’ indemnification obligations under this Agreement); and each party (D) the Everest Sellers shall execute and deliver such powers of attorney and other documents as are necessary not be entitled to carry out the intent of take any action or make any omission pursuant to this Section 9.1(b). Any information obtained 7.19(d)(ii) if to do so would prejudice the Purchaser’s recourse under this Section 9.1(b) shall the R&W Insurance Policy or would be kept confidential, except as may be otherwise necessary in connection incompatible with the filing terms thereof (including, without limitation and for the avoidance of Tax Returns or in doubt, any provisions granting rights of conduct over those same matters to the conduct of a Contest or other Tax proceedinginsurers under the R&W Insurance Policy).
(ciii) Each of HNC and JVOI shallWhile the Olympus Deferred Amount (or any part thereof) continues to be held in the Olympus Escrow Account, and the Olympus Sellers shall cause its Affiliates to: have the sole right to control any Tax Proceeding to the extent that it relates to any Tax that is an Excluded Tax described in clauses (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateof Section 7.19(b); provided, howeverthat (A) the Olympus Sellers shall inform Purchaser in a timely manner and in reasonable detail about the conduct of such Tax Proceeding; (B) the Olympus Sellers shall consider in good faith any reasonable comments provided by Purchaser with respect to the conduct of such Tax Proceeding; (C) the Olympus Sellers shall not, without Purchaser’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), agree to any settlement with respect to any Tax Proceeding if such settlement would reasonably be expected to adversely affect the amount that may be deducted from the Olympus Deferred Amount held in the Olympus Escrow Account pursuant to Section 7.19(b); and (D) the Olympus Sellers shall not be entitled to take any action or make any omission pursuant to this Section 7.19(d)(iii) if to do so would prejudice the Purchaser’s recourse under the R&W Insurance Policy or would be incompatible with the terms thereof (including, without limitation and for the avoidance of doubt, any provisions granting rights of conduct over those same matters to the insurers under the R&W Insurance Policy).
(iv) Purchaser shall have the sole right to control, at its own expense, any Tax Proceeding involving the Transferred Entities (other than any Tax Proceeding described in Section 7.19(d)(ii) or Section 7.19(d)(iii)); provided, that in all cases, such activities are the case of any Tax Proceeding for which any Seller could be liable pursuant to be conducted during normal business hours. Any information obtained under this Section 9.1(c7.19, (A) Purchaser shall be kept confidential, except as may be otherwise necessary inform Sellers in connection with the filing of Tax Returns or a timely manner and in reasonable detail about the conduct of such Tax Proceeding; (B) Purchaser shall consider in good faith any reasonable comments provided by Sellers with respect to the conduct of such Tax Proceeding; and (C) Purchaser shall not, without Sellers’ consent (which consent shall not be unreasonably withheld, conditioned or delayed), agree to any settlement with respect to any Tax Proceeding if such settlement would reasonably be expected to give rise to a Contest liability for indemnification pursuant to this Section 7.19.
(v) Notwithstanding anything to the contrary in this Agreement, Sellers shall have the exclusive right to control in all respects, and neither Purchaser nor any of its Affiliates shall be entitled to participate in, any Tax Proceeding with respect to (A) any Tax Return of any of the Sellers or any of their respective Subsidiaries (other than the Transferred Entities); and (B) any Tax proceedingReturn of a consolidated, combined or unitary group that includes any Seller or any of its Subsidiaries (other than a Transferred Entity), on the one hand, and any Transferred Entity, on the other hand.
Appears in 1 contract
Sources: Share Purchase Agreement (WEX Inc.)
Tax Contests. (a) After If any taxing authority asserts a Tax Claim, then the Closing Dateparty to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties to this Agreement; provided, HNC and JVOI however, that the failure of such party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other party of any auditof its obligations under this Article VII, claim except to the extent that the other party is prejudiced by such failure (as determined by a court of competent jurisdiction). Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the taxing authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Transferred Companies or SCT Business Assets for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 7.7(d)), Parent shall have the exclusive right to Pre-Closing Taxable Periods or Straddle Periods (any control such auditTax Proceeding; provided, claim for refundhowever, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them that Parent shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyPurchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC , if such settlement, compromise, or abandonment could have a material adverse impact on Purchaser or any of its Affiliates for any Post-Closing Period. If Parent elects not to control the conduct and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing resolution of any Tax Returns Proceeding that Parent has the right to control pursuant to this Section 7.7(b), Parent shall notify Purchaser in writing, and Purchaser shall have the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in right to control the conduct and resolution of any Contest such Tax Proceeding, or other proceeding involving portion thereof, that is not controlled by Parent; provided, that, (x) the costs and expenses, including reasonable legal and accounting fees, incurred by Purchaser in controlling such Tax Proceeding, or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) portion thereof, shall be kept confidentialborne by Parent and (y) Purchaser shall not settle, except as may compromise or abandon any such Tax Proceeding without the prior written consent of Parent, which consent shall not be otherwise necessary in connection with the filing unreasonably withheld, conditioned or delayed, if such settlement, compromise, or abandonment could have a material adverse impact on Parent or any of Tax Returns or in the conduct of a Contest or other Tax proceedingits Affiliates for any Pre-Closing Period.
(c) Each In the case of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts a Tax Proceeding of or with respect to properly retain and maintain the Tax and accounting records any of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Transferred Companies or any portions of such recordsSCT Business Asset for any Straddle Period (other than a Tax Proceeding described in Section 7.7(d)), (ii) transfer such records the Controlling Party shall have the right and obligation to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective agents and representativesconduct, at times and dates reasonably and mutually acceptable to the partiesits own expense, to from time to time inspect and review such records as such other party may deem necessary or appropriateTax Proceeding; provided, however, that in all cases(i) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c(ii) the Controlling Party shall be kept confidential, except as may be otherwise necessary consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the filing Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and attend any meetings or conferences with the relevant taxing authority, and (vi) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Tax Returns the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or in delayed; provided, further, however, that the conduct Controlling Party shall not have any obligations (and the Non-Controlling Party shall not have any rights) under clause (i), (ii), (iii) or (v) above with respect to any portion of a Contest or other Tax proceeding.such Tax
Appears in 1 contract
Tax Contests. (a) After the Closing DateIf a claim shall be made (or any Tax Proceeding otherwise initiated) by any taxing authority, HNC and JVOI that, if successful, could reasonably be expected to result in an indemnity obligation from Parent pursuant to Article X, Purchaser shall jointly control the conductpromptly notify Parent in writing (a “Tax Notice”) of such claim or Tax Proceeding (a “Tax Claim”); provided, through counsel that any failure to so notify or any delay in notifying Parent shall not relieve Parent of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect its obligations under Article X except to the HNC Business extent that Parent is materially and adversely prejudiced by such failure or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayeddelay.
(b) HNC With respect to any Tax Claim for any (i) Tax period ending on or prior to the Closing Date, (ii) Taxes imposed under Bulletin 7 and JVOI (iii) Straddle Period where the majority of the Taxes for such Straddle Period are allocable to Parent under the principles of Section 8.4 (each, a “Pre-Closing Tax Claim”), Parent shall furnish or cause have the right to be furnished to each other, upon request, as promptly as practicable, control and conduct all proceedings and negotiations in connection with such information Pre-Closing Tax Claim (including access selection of counsel), and may, in its sole discretion, either pay the Tax claimed and sue for a refund where applicable Law permits such refund suits or contest the Pre-Closing Tax Claim in any permissible manner; provided, that if Parent elects, in its sole discretion, to books control and recordsconduct the proceedings and negotiations in connection with any Pre-Closing Tax Claim, Parent shall, within ten (10) days of receipt of a Tax Notice with respect to such Pre-Closing Tax Claim, notify Purchaser in writing of its intention to control and conduct the proceedings and negotiations in connection with such Pre-Closing Tax Claim; provided, further, that if Parent chooses to sue for a refund then it shall first indemnify the Purchaser Indemnified Parties for the amount of Indemnified Taxes paid, and any subsequent refund of such Taxes shall be paid over to Parent pursuant to Section 8.11. For the avoidance of doubt, ▇▇▇▇▇▇▇▇▇ shall be entitled to the same participation and consent rights as described in the subsequent sentences of this Section 8.9(b) in connection with any such refund suit. Purchaser or its designee shall have the right, at its expense, to participate in such proceedings and negotiations (including with counsel of its choice) in connection with any Pre-Closing Tax Claim that Parent elects to conduct and control pursuant to this Section 8.9(b) and assistance relating Parent shall keep Purchaser fully informed (including by sharing any correspondence with taxing authorities with Purchaser and allowing Purchaser the opportunity to the HNC Business provide comments on any response from Parent which comments will be considered by Parent in good faith) and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each Purchaser and its accountants and other Representatives in the conduct of connection with such participation; provided, that Parent shall not settle any Contest or Pre-Closing Tax Claim (other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) than with respect to any Tax and each party shall execute and deliver Return of a consolidated, combined, unitary or similar group that includes any member of the Parent Group (including any Parent Combined Tax Return)) without Purchaser’s written consent (such powers of attorney and other documents as are necessary consent not to carry out the intent of this Section 9.1(bbe unreasonably withheld, conditioned or delayed). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary In the case of any proceedings and negotiations in connection with the filing of any Pre-Closing Tax Returns Claim that Parent does not elect to conduct and control pursuant to this Section 8.9(b) or in the conduct of a Contest or connection with any other Tax proceedingClaim for any Straddle Period, Purchaser may control, or cause its designee to control, and conduct such proceedings and negotiations in such manner as it may deem appropriate, and Parent shall have the right, at its expense, to participate in such proceedings and negotiations (including with counsel of its choice) and Purchaser shall keep Parent fully informed (including by sharing any correspondence with taxing authorities with Parent and allowing Parent the opportunity to provide comments on any response from Purchaser which comments will be considered by Purchaser in good faith) and reasonably cooperate with Parent and its accountants and other Representatives in connection with such participation; provided, that Purchaser shall not settle or abandon any such Tax Claim without Parent’s written consent (such consent not to be unreasonably withheld, conditioned or delayed).
(c) Each of HNC and JVOI shallNotwithstanding anything to the contrary in this Agreement, Parent shall have the exclusive right to control in all respects, and shall cause neither Purchaser nor any of its Affiliates to: (including, after the Closing, the Transferred Entities) shall be entitled to participate in, any Tax Claim with respect to (i) any Tax Return of Parent or a member of a Parent Group and (ii) any Parent Combined Tax Return; provided, that Parent shall not settle or otherwise resolve any such material Tax Claim in a manner that would disproportionately and materially adversely affect Purchaser or any of its Affiliates (including, for periods after the Closing, the Transferred Entities) without Purchaser’s prior written consent (not to be unreasonably withheld, conditioned or delayed) and Parent will use its commercially reasonable efforts to properly retain keep Purchaser reasonably apprised of matters that would reasonably be expected to materially and maintain adversely affect Purchaser or its Affiliates (including, for periods after the Tax and accounting records of Closing, the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingTransferred Entities).
Appears in 1 contract
Tax Contests. (a) After The Landlord shall have the Closing Dateright, HNC and JVOI shall jointly control at its own expense, to contest the conductamount or validity, through counsel of their own choosingin whole or in part, of any auditImposition by appropriate proceedings diligently conducted in good faith but only after payment of such Imposition unless such payment, claim in the Landlord's reasonable judgment, would operate as a bar to such contest or would adversely affect the Landlord's chances for refundsuccess in such contest, in which event, payment of such Imposition shall be postponed if and only so long as neither the Premises nor any part thereof would by reason of such postponement or deferment be, in the reasonable judgment of the Tenant, in danger of being forfeited, lost or materially affected. Upon the termination of any proceedings, it shall be the obligation of the Landlord to pay the amount of such Imposition or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees, interests, penalties or other liabilities in connection therewith. Nothing herein contained, however, shall be so construed as to allow such Imposition to remain unpaid for such length of time as shall permit the Premises, or administrative any part thereof, to be sold, taken or judicial proceeding involving otherwise adversely affected by any asserted Tax liability or refund Governmental Authority for the non-payment of the same. The Landlord shall promptly furnish the Tenant with respect copies of all proceedings and documents with regard to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallcontest, and each of them the Tenant shall cause have the right, at its Affiliates not toexpense, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayedto participate therein.
(b) HNC The Tenant will, at the request of the Landlord reasonably cooperate in contesting the amount or validity, in whole or in part, of any Imposition. In that connection, the Tenant shall execute, within fifteen (15) days after receipt of written request therefor, any and JVOI shall 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 HNC Business and the Schnitzer Business as is all documents reasonably requested for by the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary Landlord in connection with the filing of Tax Returns or foregoing. The Landlord shall reimburse the Tenant for all out-of-pocket expenses incurred by the Tenant (including reasonable attorney's fees) in the conduct of a Contest or other Tax proceedingperforming its obligations under this Section 408.
(c) Each of HNC and JVOI shallThe Tenant may contest charges payable by it if it complies with the requirements set forth in Section 408(a). In such circumstance the Landlord will, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain at the Tax and accounting records request of the HNC Business Tenant, reasonably cooperate in the same manner and procedure as set forth in Section 408(b). The Landlord reserves the Schnitzer Business that relate right to Pre-Closing Taxable Periods or Straddle Periods evaluate on a case by case basis the merit of the Tenant's contest about the Imposition and shall provide reserves the other party with written notice prior right to any destructionrefuse to cooperate in contesting said Imposition if, abandonment or disposition in the sole determination of all or any portions of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all casesLandlord, such activities are to contest would not be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingpublic interest.
Appears in 1 contract
Tax Contests. (a) After Each party hereto shall promptly give written notice (with a true, correct and complete copy of the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, relevant portion or portions of any determination or other documentation provided by any Tax authority) to each other party of any examination, audit, claim inquiry or proposed or actual assessment by any federal, state, local or foreign taxing authority covering any potential liability for refundTaxes where a right may exist on the part of one party (the "Indemnified Party") to demand payment from or be indemnified by the other party (the "Indemnifying Party") for such Taxes.
(b) In case any Tax Proceeding is brought against any Indemnified Party, or administrative or judicial proceeding involving any asserted Tax liability or refund and it notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled, at its expense, to participate therein and to assume control thereof with respect counsel selected by it. Subsequent to such assumption of control, the Indemnifying Party shall not be liable to the HNC Business Indemnified Party for any legal or other expenses subsequently incurred by the Schnitzer Business relating Indemnified Party in connection with such Tax Proceeding; provided, however, that the Indemnified Party shall thereafter have the right to Pre-Closing Taxable Periods or Straddle Periods (participate in such Tax Proceeding and to be represented, solely at its expense, by advisory counsel selected by it, it being understood that the Indemnifying Party shall control such Tax Proceeding and any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion settlement of such Contest Tax Proceeding; provided, further, that no Tax Proceeding shall be settled without the consent of the other partyIndemnified Party, which consent shall may not be unreasonably withheld or delayed.
(bc) HNC and JVOI shall furnish or cause to be furnished to each otherThe Indemnified Party will, upon requestat the expense of the Indemnifying Party, as promptly as practicable, cooperate with the Indemnifying Party in the defense of any such information (including access to books and recordsaction in the manner provided in Sections 8.4(a) and assistance relating (b). 45
(d) Upon waiver of its right to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) indemnification with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out matter that is the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct subject of a Contest or other Tax proceeding.
(c) Each Proceeding, the Indemnified Party shall assume sole control of HNC and JVOI shallthe Tax Proceeding relating to such matter, and the Indemnifying Party shall cause its Affiliates to: (i) use its commercially reasonable efforts not thereafter have any right to properly retain and maintain participate in such proceeding or the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingsettlement thereof.
Appears in 1 contract
Tax Contests. (aA) After the Closing DateIf a claim shall be made by any taxing authority (a "Tax Claim") which, HNC and JVOI shall jointly control the conductif successful, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect might result in an indemnity payment to the HNC Business Purchaser or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not topursuant to Section 7.4(g), settle, compromise and/or concede any portion Purchaser shall promptly notify Pfizer of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateclaim; provided, however, that the failure to give such notice shall not affect the indemnification provided hereunder except to the extent Pfizer has actually been prejudiced as a result of such failure and for this purpose, any failure to give such notice that results in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) Pfizer not controlling or participating in any proceeding shall be kept confidentialdeemed to prejudice Pfizer.
(B) With respect to any Tax Claim relating to a taxable period ending on or before the Closing Date or relating to a Consolidated Tax Return, except as Pfizer shall control all proceedings and may be otherwise necessary make all decisions taken in connection with such Tax Claim (including selection of counsel) and, without limiting the filing foregoing, may in its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and ▇▇▇ for a refund where applicable law permits such refund suits or contest the Tax Claim in any permissible manner. Purchaser shall be entitled to be informed of such Tax Returns Claim within a reasonable time after such Claim is asserted and the developments with respect to such Tax Claim at any administrative meeting, conference, hearing or other proceeding, and Purchaser shall have the right to participate at its own expense in the conduct of any such proceeding involving a Contest Tax Claim which would adversely affect the Purchaser.
(C) Except as otherwise provided in Section 7.4(i)(B), Pfizer and Purchaser shall jointly control and participate in all proceedings taken in connection with any Tax Claim relating to Taxes of the Conveyed Subsidiaries or other any of their Subsidiaries for any Straddle Period. Neither Pfizer nor Purchaser shall settle any such Tax proceedingClaim without the prior written consent of the other, which shall not be unreasonably withheld.
(D) Except as otherwise provided in Section 7.4(i)(B), Purchaser shall control all proceedings with respect to Taxes for any taxable period beginning after the Closing Date. Pfizer shall have the right to participate at its own expense in the conduct of such proceedings involving a Tax Claim, which would adversely affect Pfizer.
(E) Purchaser, the Conveyed Subsidiaries, each of their Subsidiaries and each of their respective Affiliates, on the one hand, and Pfizer and its respective Affiliates, on the other, shall cooperate in contesting any Tax Claim, which cooperation shall include the retention and (upon request) the provision to the requesting party of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
Appears in 1 contract
Tax Contests. (a) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain If any Taxing Authority asserts a Tax Claim, then the Party hereto first receiving notice of such Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and Claim shall promptly provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records thereof to the other party upon its written request prior to any such destruction, abandonment Party or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateParties hereto; provided, however, that in all cases, the failure of such activities are Party to be conducted during normal business hours. Any information obtained give such prompt notice shall not relieve the other Party of any of its obligations with respect to Taxes and indemnity obligations therefor under this Section 9.1(c) shall be kept confidentialthe Tax Provisions, except as may be otherwise necessary to the extent that the other Party is actually prejudiced thereby. Such notice shall specify in reasonable detail, to the extent known, the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(ii) The Seller Parties shall have the right and obligation to control, at their own expense, any audit, examination, contest, litigation or other proceeding by or against any Taxing Authority (a "Tax Proceeding") in respect of the Company or the Subsidiary for any taxable period that ends on or before the Closing Date; provided, however, that, in the event of any Tax Claim in excess of One Thousand Dollars ($1,000), (A) the Seller Parties shall provide Purchaser with a timely and reasonably detailed account of each stage of such Tax Proceeding, (B) the Seller Parties shall use reasonable efforts to consult with Purchaser before taking any significant action in connection with such Tax Proceeding, (C) the filing Seller Parties shall use reasonable efforts to consult with Purchaser and offer Purchaser an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (D) the Seller Parties shall defend such Tax Proceeding diligently and in good faith as if they were the only party in interest in connection with such Tax Proceeding, (E) Purchaser shall be entitled to participate, at its own expense, in such Tax Proceeding and receive copies of any written materials relating to such Tax Returns Proceeding received from the relevant Taxing Authority, and (F) the Seller 45 Parties shall not settle, compromise or in abandon any issues relating to such Tax Proceeding, if such action could have a materially adverse impact on Purchaser or any Affiliate of Purchaser (including the conduct Company and the Subsidiary after the Closing Date), without obtaining the prior written consent of Purchaser.
(iii) In the case of a Contest Tax Proceeding for a Straddle Period of the Company and the Subsidiary, Purchaser shall have the right to control, at its own expense, such Tax Proceeding; provided, however, that (A) Purchaser shall provide the Seller Parties with a timely and reasonably detailed account of each stage of such Tax Proceeding, (B) Purchaser shall use reasonable efforts to consult with the Seller Parties before taking any significant action in connection with such Tax Proceeding, (C) Purchaser shall use reasonable efforts to consult with the Seller Parties and offer the Seller Parties an opportunity to comment before submitting any written materials prepared or other furnished in connection with such Tax proceedingProceeding, (D) Purchaser shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (E) the Seller Parties shall be entitled to participate, at their own expense, in such Tax Proceeding and receive copies of any written materials relating to such Tax Proceeding received from the relevant Taxing Authority, and (F) Purchaser shall not settle, compromise or abandon any such Tax Proceeding, if such action could have a materially adverse impact on the Seller Parties or any Affiliate of the Seller Parties, without obtaining the prior written consent of the Seller Parties.
Appears in 1 contract
Sources: Stock Purchase Agreement (Usec Inc)
Tax Contests. (a) After From and after the Closing DateClosing, HNC and JVOI shall jointly control the conductif any Taxing Authority issues to Buyer, through counsel any Purchased Subsidiary or any of their own choosingAffiliates (i) a written notice of its intent to investigate, of audit or conduct any audit, proceeding that could reasonably be expected to give rise to a claim for refundany Covered Taxes or (ii) a written notice of deficiency for Covered Taxes, Buyer shall notify Seller of its receipt of such communication from the Taxing Authority within 10 Business Days of receipt. No failure or administrative delay of Buyer in the performance of the foregoing shall reduce or judicial otherwise affect the obligations or liabilities of Seller pursuant to this Agreement, except to the extent Seller is actually prejudiced by such failure or delay.
(b) Seller, at its sole cost and expense, shall control any investigation, audit or other proceeding involving any asserted solely for a Pre-Closing Tax liability or refund Period (and not with respect to any Straddle Period or portion thereof), including the HNC Business Pending Tax Matters; provided, however that (i) the Seller shall control such investigation, audit or other proceeding in good faith; (ii) the Schnitzer Business Seller shall keep the Buyer reasonably informed regarding the status of such investigation, audit or other proceeding; (iii) the Buyer shall have the right to participate in such investigation, audit or other proceeding; and (iv) the Seller shall not, without the Buyer’s prior written permission (which shall not be unreasonably withheld, delayed, or conditioned), settle, resolve, or abandon such investigation, audit or other proceeding (or any portion thereof) if such settlement, resolution, or abandonment could result in any Purchased Subsidiary or other Buyer Indemnified Party incurring a Tax that will not be fully paid by the Seller pursuant to this Agreement.
(c) Buyer, at its sole cost and expense, shall control all other investigations, audits or other proceedings relating to Taxes or Tax Returns of the Purchased Subsidiaries relating to Pre-Closing Taxable Periods or Straddle Tax Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”including all Straddle Periods). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that (i) the Buyer shall control such investigation, audit or other proceeding in all casesgood faith; (ii) the Buyer shall keep the Seller reasonably informed regarding the status of such investigation, audit or other proceeding; (iii) the Seller shall have the right to participate in such activities are investigation, audit or other proceeding; and (iv) the Buyer shall not, without the Seller’s prior written permission (which shall not be unreasonably withheld, delayed, or conditioned), settle, resolve, or abandon (or allow any Purchased Subsidiary to be conducted during normal business hours. Any information obtained under settle, resolve, or abandon) such investigation, audit or other proceeding (or any portion thereof) if such settlement, resolution, or abandonment could result in a Covered Tax.
(d) Notwithstanding any provision of this Section 9.1(c) shall be kept confidentialSection 8.07 to the contrary, except as may be otherwise necessary in connection with the filing of Tax Returns or in Seller shall, at its sole cost and expense, exclusively control the conduct of a Contest any investigation, audit or other proceeding related to Taxes or Tax Returns of a Seller Group; provided, however, that to the extent such investigation, audit or other proceeding could reasonably be expected to affect the Taxes or Tax Returns of any Purchased Subsidiary for a Post-Closing Tax Period, Seller shall keep Buyer reasonably informed regarding the status of such investigation, audit or other proceeding.
Appears in 1 contract
Tax Contests. (a) After If any taxing authority asserts a Tax Claim in respect of the Closing DateAcquired Company, HNC then the party hereto first receiving notice of such Tax Claim shall provide written notice thereof to the other party or parties hereto within fourteen (14) calendar days; provided, however, that the failure of such party to give timely notice shall not relieve the other party of any of its obligations under this Article XIV, except to the extent that the other party is rendered unable to timely and JVOI adequately contest the subject Tax (without being required first to pay all or part of the subject Tax) or to adequately defend against or prosecute the Tax Claim. Such notice shall jointly specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the taxing authority.
(b) Seller shall have the right to control the conduct, through counsel of their own choosing, of any audit, claim examination, contest, litigation or other proceeding by or against any taxing authority (a “Tax Proceeding”) of the Acquired Company for refundany taxable period that ends on or before the Closing Date or for any taxable period of Seller or any of its Affiliates during which any combined, consolidated or administrative unitary Tax Return includes the Acquired Company and Seller or judicial proceeding involving any asserted Tax liability or refund of its Affiliates; provided, however, that with respect to any Tax Proceeding solely in respect of the HNC Business or Acquired Company that would reasonably be expected to have a significant adverse impact on Purchaser and its Affiliates (i.e., one for which Purchaser and its Affiliates are not entitled to indemnification under this Article XIV), (i) Seller shall consult with Purchaser before taking any significant action in connection with such Tax Proceeding, (ii) Seller shall defend such Tax Proceeding diligently and in good faith as if it were the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any only party in interest in connection with such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallProceeding, and each of them (iii) Seller shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyPurchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(bc) HNC and JVOI shall 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 In the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct case of a Contest or other Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records Proceeding for a Straddle Period of the HNC Business and Acquired Company, Purchaser shall have the Schnitzer Business that relate right to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of control such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateTax Proceeding; provided, however, that in all cases(i) Purchaser shall provide Seller with a timely and reasonably detailed account of each phase of such Tax Proceeding, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c(ii) Purchaser shall be kept confidential, except as may be otherwise necessary consult with Seller before taking any significant action in connection with such Tax Proceeding, (iii) Purchaser shall consult with Seller and offer Seller an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) Purchaser shall defend such Tax Proceeding diligently and in good faith as if it were the filing only party in interest in connection with such Tax Proceeding, (v) Seller shall be entitled to participate in such Tax Proceeding, at its own expense, if such Tax Proceeding could have an adverse impact on Seller or any of its Affiliates and (vi) Purchaser shall not settle, compromise or abandon any such Tax Returns Proceeding without obtaining the prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, of Seller if such settlement, compromise or abandonment would have an adverse impact on Seller or any of its Affiliates.
(d) Purchaser shall have the right to control any Tax Proceeding involving the Acquired Company other than a Tax Proceeding described in the conduct Sections 14.4(b) or 14.4(c); provided, however, that Purchaser shall not settle, compromise or abandon any such Tax Proceeding, if such action would reasonably be expected to have a significant adverse impact on Seller or any Affiliate of a Contest or other Tax proceedingSeller.
Appears in 1 contract
Tax Contests. (ai) After If any Taxing Authority asserts a Tax Claim, then the Closing Dateparty to this Agreement first receiving notice of such Tax Claim shall promptly provide written notice thereof to the other party or parties to this Agreement; provided, HNC and JVOI that the failure of such party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other party of any auditof its obligations under Section 9.02, claim except to the extent that the other party is actually and materially prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refundsuch Tax Claim to the extent such detail is specified by a Taxing Authority, and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(ii) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to a Transferred Entity for any Pre-Closing Taxable Periods Tax Period (other than a Tax Proceeding described in Section 5.15(d)(iii) or Straddle Periods Section 5.15(d)(iv)), the Sellers shall have the exclusive right to control such Tax Proceeding at their own expense; provided, that (any A) the Sellers shall provide the Buyers with a timely and reasonably detailed account of each material development of such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, Proceeding and each of them (B) the Sellers shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the Buyers (which consent shall not be unreasonably withheld, conditioned or delayed). The Sellers may elect in writing not to control any Tax Proceeding that the Sellers otherwise have the right to control pursuant to the preceding sentence. If the Sellers make such election with respect to a Tax Proceeding, the Buyers shall have the right and obligation to conduct such Tax Proceeding, and the provisions of Section 5.15(d)(iii) shall apply, mutatis mutandis, with respect to such Tax Proceeding.
(iii) In the case of a Tax Proceeding of or with respect to a Transferred Entity for any Straddle Period or otherwise involving both Taxes that are the responsibility of the Buyers and Taxes that are the responsibility of the Sellers pursuant to this Agreement (other partythan a Tax Proceeding described in Section 5.15(d)(iv)), the Buyers shall have the right and obligation to conduct, at their own expense, such Tax Proceeding; provided, that (A) the Buyers shall provide the Sellers with a timely and reasonably detailed account of each material development of such Tax Proceeding, (B) the Buyers shall consult with the Sellers before taking any significant action in connection with such Tax Proceeding, (C) the Buyers shall consult with the Sellers and offer the Sellers an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (D) the Sellers shall be entitled to participate in such Tax Proceeding at their own expense and attend any meetings or conferences (including phone conferences) with the relevant Taxing Authority, and (E) the Buyers shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(biv) HNC and JVOI shall 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 Notwithstanding anything to the HNC Business contrary in this Agreement, the Seller Group shall have the exclusive right to control in all respects, and neither the Schnitzer Business as is reasonably requested for the filing Buyers nor any of their Subsidiaries or Affiliates shall be entitled to participate in, any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Proceeding with respect to (A) any Taxes or Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records Return of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Sellers or any portions of such records, their Subsidiaries or Affiliates (ii) transfer such records to other than the other party upon its written request prior to any such destruction, abandonment or disposition Transferred Entities); and (iiiB) allow the other party and their respective 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 such other party may deem necessary any Taxes or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing Tax Return of any Sellers Consolidated Group (including any Combined Tax Returns or in the conduct of a Contest or other Tax proceedingReturn).
Appears in 1 contract
Tax Contests. (a) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, If SXE or any Contributed Entity receives notice of any deficiency, proposed adjustment, assessment, audit, examination, inquiry, suit, dispute or other claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to any Pre-Closing Taxable Periods or Straddle Periods Taxes (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “ContestTax Claim”), SXE will cause such entity (or, in the case of any TexStar JV Entity, use commercially reasonable efforts to cause such entity) to notify TexStar in writing within ten days of receipt of any Tax Claim attributable to a member of the TexStar Group, but the failure to so notify TexStar will not relieve TexStar of any liability it may have under Section 8.1(c), except to the extent TexStar has suffered actual and material prejudice thereby. With respect to any Tax Claim, the provisions of this Section 7.13(e) and not Section 9.4 or Section 9.5 shall apply. With respect to any Tax Claim attributable to a member of the TexStar Group, TexStar (the “Controlling Person”) shall assume and control all claims, actions, administrative appeals, proceedings, hearings and conferences, investigations or inquiries, suits with any applicable Governmental Authorities with respect thereto (the “Tax Proceedings”). Neither HNC nor JVOI shallWith respect to any Tax Claim, the Controlling Person may either pay the Tax claimed and ▇▇▇ for a refund where applicable Law permits such refund suits or contest the Tax Claim in any permissible manner; provided, however, that (i) SXE (the “Non-Controlling Person”) will be permitted to participate fully in all such Tax Proceedings at such Person’s sole cost and the Controlling Person will consult with the Non-Controlling Person in the negotiation and settlement of any Tax Claim, and each of them shall cause its Affiliates not to(ii) the Controlling Person will not, settle, compromise and/or concede any portion of such Contest without the written consent of the other partyNon-Controlling Person, which consent shall not be unreasonably withheld withheld, settle or compromise any Tax Claim in any manner; provided, that to the extent that a Tax Claim relates to a Straddle Period, TexStar and SXE will jointly have the right to control all Tax Proceedings taken in connection with any such Tax Claim and such Straddle Period Tax Claim and will not settle or compromise such Straddle Period Tax Claim without the written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Contribution Agreement (Southcross Energy Partners, L.P.)
Tax Contests. If any Governmental Authority issues to PubCo or any AST Party (a) After a written notice of its intent to audit or other similar proceeding that could give rise to any Indemnified Taxes, or (b) a written notice of deficiency that includes any Indemnified Taxes (any of the Closing Dateforegoing, HNC a “Tax Contest”), PubCo or the AST Party, as applicable, shall notify Antares in writing of its receipt of such communication as soon as reasonably possible but in all cases within thirty (30) days after such receipt, and JVOI such written notice shall jointly control the conduct, through counsel of their own choosing, be accompanied by copies of any audit, claim for refund, notice or administrative or judicial proceeding involving any asserted Tax liability or refund other documents received from the Governmental Authority with respect to the HNC Business such Tax Contest. If any Governmental Authority issues a communication to Antares with respect to any Tax Contest, Antares shall notify PubCo or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods AST Party, as applicable, in writing of its receipt of such communication as soon as reasonably possible but in all cases within thirty (any 30) days after such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallreceipt, and each such written notice shall be accompanied by copies of them any notice or other documents received from the Governmental Authority with respect to such Tax Contest. Antares (or any Person or Persons it designates), at its expense, shall cause its Affiliates control the portion of any Tax Contest that relates to Indemnified Taxes; provided, however, that Antares shall (i) keep PubCo or the AST Party reasonably apprised of the status of such portion of such Tax Contest, (ii) provide PubCo or the AST Party with copies of all material correspondence received from the applicable Governmental Authority in connection with such portion of such Tax Contest, and (iii) not to, settle, compromise and/or concede any or abandon such portion of such Tax Contest without the prior written consent of PubCo or the other party, AST Party (which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC ). PubCo and JVOI the AST Parties shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information take any actions (including access granting Antares or its designee any necessary power of attorney) reasonably necessary to books and records) and assistance relating allow Antares to the HNC Business and the Schnitzer Business as is reasonably requested for the filing exercise its right to control such portion of any Tax Returns and Contest pursuant to this Section 4.1. For the preparationavoidance of doubt, prosecution, defense this Section 4.2 shall not apply to any Tax Contest of or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) Affiliated Group which includes PubCo, which 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records subject to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing sole control of Tax Returns or in the conduct of a Contest or other Tax proceedingPubCo.
Appears in 1 contract
Sources: Merger Agreement (Invesat LLC)
Tax Contests. (ai) After Parent will have the Closing Date, HNC and JVOI shall jointly right to control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund all Actions with respect to Taxes or Tax Returns of the HNC Business Company or any of its Subsidiaries; provided that the Schnitzer Business relating Securityholders’ Representative may, at its own expense and upon providing advance written notice to Parent, control all Actions that are solely with respect to Taxes of the Company or its Subsidiaries for a taxable period that ends on or prior to the Closing Date and for which the Securityholders could have liability under this Agreement or could otherwise be impacted (a “Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallWith respect to any Pre-Closing Tax Contest, and each of them shall cause its Affiliates (i) the controlling Party may not to, settle, compromise and/or concede settle any portion of such Pre-Closing Tax Contest without the prior written consent of the other party, Party (which consent shall such Party will not be unreasonably withheld withhold, condition, or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(bdelay). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 controlling Party will keep the other party upon its written request prior to Party reasonably informed of all material communications with any such destructionGovernmental Authorities, abandonment or disposition and (iii) the non-controlling Party may participate in such Pre-Closing Tax Contest at its sole expense. With respect to any Actions with respect to Taxes or Tax Returns of the Company or any of its Subsidiaries for any Straddle Period and for which Securityholders could have liability under Law or this Agreement, (i) Parent may not settle, or allow to be settled, any such Action without the prior written consent of Securityholders’ Representative (which consent Securityholders’ Representative will not unreasonably withhold, condition or delay), (ii) Parent will keep Securityholders’ Representative reasonably informed of all material communications with any Governmental Authorities, and (iii) Securityholders’ Representative may participate in such Tax contest at its sole expense. Notwithstanding anything provided in this Section 5.11(e), if (i) the Escrow Agreement has terminated or expired or the Indemnity Escrow Amount has already been utilized or otherwise applied and (ii) the Securityholders could not be directly liable for Tax by any such Actions, then Securityholders’ Representative and the Stockholders shall not have any rights relating to any Actions, including notice or being informed, consent, participation or control rights.
(ii) Parent and the Securityholders will promptly provide each other party with notice of any written inquiries, audits, examinations or proposed adjustments by the IRS or any other Governmental Authorities that relate to any matter described in Section 5.11(e)(i) and their respective agents keep each other reasonably informed of the details and representativesstatus of such matter (including providing copies of all material written correspondence regarding such matter); provided that any failure to so notify the Securityholders’ Representative shall not preclude the Securityholders from any obligation or liability for Taxes in accordance with this Section 5.11, at times except, and dates reasonably and mutually acceptable only to the parties, to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, howeverextent, that in all cases, the Securityholders are materially prejudiced by reason of such activities are failure to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingprovide timely notice.
Appears in 1 contract
Sources: Merger Agreement (Stewart Information Services Corp)
Tax Contests. If the Company or any member Contributed Entity receives notice of any deficiency, proposed adjustment, assessment, audit, examination, inquiry, suit, dispute or other claim with respect to any Pre-Closing Taxes (a) After a “Tax Claim”), the Closing DateCompany will cause such entity to notify in writing within ten days of receipt of any Tax Claim the Southcross Director and the BBTS Director, HNC and JVOI shall jointly control but the conductfailure to so notify will not relieve the BBTS or Southcross, through counsel of their own choosingas applicable, of any auditliability it may have under Section 10.1(b)(iii) or Section 10.2(b)(iii), claim for refundexcept to the extent such Party has suffered actual and material prejudice thereby. With respect to any Tax Claim, the provisions of this Section 8.13(d) and not Section 10.4 or administrative or judicial proceeding involving any asserted Tax liability or refund Section 10.5 shall apply.
(i) the Southcross Director with respect to a Tax Claim attributable to SXE GP and any member of the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refundSXE Group, or proceeding relating (ii) the BBTS Director with respect to an asserted a Tax liability referred Claim attributable to herein a member of the TexStar Group. With respect to any Tax Claim, the Controlling Person may either pay the Tax claimed and ▇▇▇ for a refund where applicable Law permits such refund suits or contest the Tax Claim in any permissible manner; provided, however, that (A) the Person, as between the Southcross Director and the BBTS Director, who is not the Controlling Person as to a Tax Claim (the “ContestNon-Controlling Person”). Neither HNC nor JVOI shall) will be permitted to participate fully in all such Tax Proceedings at such Person’s sole cost and the Controlling Person will consult in good faith with the Non-Controlling Person in the negotiation and settlement of any Tax Claim, and each of them shall cause its Affiliates not to(B) the Controlling Person will not, settle, compromise and/or concede any portion of such Contest without the written consent of the other party, Non-Controlling Person (which consent shall not be unreasonably withheld withheld) settle or compromise any Tax Claim in any manner; provided, that to the extent that a Tax Claim relates to a Straddle Period, the Southcross Director and the BBTS Director will jointly have the right to control all Tax Proceedings taken in connection with any such Tax Claim and such Straddle Period Tax Claim will not settle or compromise such Straddle Period Tax Claim, without the written consent of both the Southcross Director and the BBTS Director, which consents shall not be unreasonably withheld, conditioned or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Tax Contests. (ai) After MH and CMA (with respect to CMA Excluded Taxes), the Company and CME Group (with respect to CME Group Pre-Closing Date, HNC Taxes) or the Company and JVOI shall jointly control MH (with respect to MH Pre-Closing Taxes) will promptly notify the conduct, through counsel other in writing upon the receipt of their own choosing, notice from any Governmental Authority of any audit, claim for refund, pending or threatened audit or administrative or judicial proceeding involving any asserted Tax liability or refund with respect related to the HNC Business or the Schnitzer Business relating to CMA Excluded Taxes, CME Group Pre-Closing Taxable Periods Taxes or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to MH Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destructionTaxes, abandonment or disposition of all or any portions of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriaterespectively; provided, however, that in all cases, the failure to provide such activities notification shall not release the indemnifying party from any of its obligations to indemnify under this Article VII or Article X except to the extent the indemnifying party is actually prejudiced by such failure.
(ii) CME Group shall have the right to control any audit or administrative or judicial proceeding with respect to Taxes (a “Tax Proceeding”) that are CMA Excluded Taxes (other than any Taxes for a Straddle Period) or that are CME Group Pre-Closing Taxes for which the Company or any of its Subsidiaries would reasonably be likely to be conducted during normal business hours. Any information obtained liable under this Section 9.1(capplicable Law (other than any Taxes for a Straddle Period); provided, that (A) MH (in the case of CMA) and the Company (in the case of any CME Group Pre-Closing Taxes for which the Company or any of its Subsidiaries would reasonably be likely to be liable under applicable Law) will have the right to participate in such Tax Proceeding and to employ counsel of MH’s or the Company’s, respectively, choice, (B) CME Group shall be kept confidentialconsult with MH or the Company, except as may be otherwise necessary respectively, before taking any significant action in connection with such Tax Proceeding, and (C) CME Group shall not settle or compromise such Tax Proceeding without the filing written consent of MH or the Company, respectively (such consent not to be unreasonably withheld). For the absence of doubt, subject to Section 6.7 of the Company Operating Agreement, CME Group shall have the right to control any Tax Returns Proceeding (to which CME Group or a Subsidiary of CME Group is a party) with respect to CME Group Pre-Closing Taxes for which neither the Company nor any of its Subsidiaries would reasonably be likely to be liable under applicable Law.
(iii) MH (in the case of CMA) and the Company (in the case of any CME Group Pre-Closing Taxes for which the Company or any of its Subsidiaries would reasonably be likely to be liable under applicable Law) shall have the right to control any Tax Proceeding for any Straddle Period; provided, that (A) CME Group will have the right to participate in such Tax Proceeding and to employ counsel of CME Group’s choice, (B) MH or the Company, respectively, shall consult with CME Group before taking any significant action in connection with such Tax Proceeding, and (C) MH or the Company, respectively, shall not settle or compromise such Tax Proceeding without the written consent of CME Group (such consent not to be unreasonably withheld).
(iv) MH shall have the right to control any Tax Proceeding of, or in respect of any MH Pre-Closing Taxes for which the conduct Company or any of its Subsidiaries would reasonably be likely to be liable under applicable Law (other than for any Straddle Period); provided, that (A) the Company will have the right to participate in such Tax Proceeding and to employ counsel of the Company’s choice, (B) MH shall consult with CME Group before taking any significant action in connection with such Tax Proceeding and (C) MH shall not settle or compromise such Tax Proceeding without the written consent of CME Group (such consent not to be unreasonably withheld). For the absence of doubt, subject to Section 6.7 of the Company Operating Agreement, MH shall have the right to control any Tax Proceeding (to which MH or a Contest Subsidiary of MH is a party) with respect to MH Pre-Closing Taxes for which neither the Company nor any of its Subsidiaries would reasonably be likely to be liable under applicable Law.
(v) The Company in respect of any MH Pre-Closing Taxes for which the Company or any of its Subsidiaries would reasonably be likely to be liable under applicable Law shall have the right to control any Tax Proceeding for any Straddle Period; provided, that, (A) MH will have the right to participate in such Tax Proceeding and to employ counsel of MH’s choice, (B) the Company shall consult with MH and CME Group before taking any significant action in connection with such Tax Proceeding, and (C) the Company will not settle or compromise such Tax Proceeding without the written consent of MH and CME Group (such consent not to be unreasonably withheld).
(vi) MH (in the case of CMA) and the Company (in the case of the CME Group Contributed Subsidiaries and the MH Contributed Subsidiaries and any Taxes with respect to the S&P Index Business, the MH Contributed Assets, the CME Group Index Business or the CME Group Contributed Assets, in each case, for which the Company or any of its Subsidiaries would reasonably be likely to be liable under applicable Law) shall have the exclusive right to control any Tax Proceeding other than any Tax Proceeding described in Section 7.04(c)(ii), (iii), (iv) or (v). For the absence of doubt, notwithstanding any other provision, MH shall be entitled to control in all respects and no other Person shall have any right to participate in any Tax Proceeding relating to any consolidated, combined, unitary or other group or profit or loss sharing Tax proceedingReturn involving MH or any Subsidiary of MH.
Appears in 1 contract
Tax Contests. (ai) After Acquiror or Seller, as the Closing Datecase may be, HNC and JVOI shall jointly control notify the conduct, through counsel other party within twenty days after receipt by such party or any of their own choosing, its Affiliates of written notice of any auditpending federal, claim state, local or foreign Tax audit or examination or notice of deficiency or other adjustment, assessment or redetermination relating to Taxes for refundwhich such other party or its Affiliates may be responsible under Section 8.1(a), 8.1(b) or administrative or judicial proceeding involving 8.1(g) (“Tax Matters”).
(ii) With respect to any asserted Tax liability or refund Matters relating to Taxes of any Entity in the Company Group for which Seller is obligated to indemnify Acquiror under Section 8.1(a), Seller may choose in its sole discretion to control, contest, resolve and defend against (at its expense) such Tax Matter (including selection of counsel); provided that with respect to the HNC Business any such Tax Matter, Seller shall keep Acquiror informed of all developments on a timely basis (including by sending copies of all material correspondence to Acquiror) and shall not agree to settle or the Schnitzer Business resolve any such Tax Matter (other than a Tax Matter relating to Pre-Closing Taxable Periods Consolidated Income Tax Liabilities or Straddle Periods any Consolidated or Combined Return, which Seller may settle or resolve in its sole discretion) without Acquiror’s consent, not to be unreasonably withheld, conditioned or delayed.
(iii) Subject to Section 8.1(h)(iv), Acquiror shall have the sole right (at its own expense) to control all Tax Matters of any such audit, claim for refund, or proceeding relating Entity in the Company Group not controlled by Seller pursuant to an asserted Tax liability referred to herein as a “Contest”Section 8.1(h)(ii). Neither HNC nor JVOI shall.
(iv) Acquiror shall not, and each of them shall cause not permit its Affiliates not to, settleconcede, settle or compromise and/or concede any a Tax Matter (or portion thereof) controlled by Acquiror under Section 8.1(h)(iii) to the extent such concession, settlement or compromise could result in a payment from Seller to Acquiror pursuant to Section 8.1(a) of such Contest this Agreement, without the consent of the other partySeller, which consent shall not be unreasonably withheld or delayedwithheld.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Tax Contests. (ai) After the Closing DateSelect, HNC at its sole cost and JVOI expense, shall jointly exclusively control the conduct, through counsel of their own choosing, conduct of any audit, claim for refund, examination or administrative or judicial other legal proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent ) related to a Tax Return of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateSelect Consolidated Group; provided, however, that if an issue is raised during such Tax Contest that could affect the Taxes of either Company for a Post-Closing Tax Period, the Sellers shall keep the Buyer reasonably informed regarding the status of such Tax Contest.
(ii) In the case of any Tax Contest relating to Taxes of either Company not described in all casesSection 5.4(e)(i), Buyer shall control provided that upon written notice to the Buyer, the applicable Seller may assume the defense of any such activities are Tax Contest related solely to be conducted during normal business hoursa Tax Return of either Company for any Pre-Closing Tax Period (but not a Straddle Period) (a “Pre-Closing Tax Contest”). Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in In connection with the filing of any Pre-Closing Tax Returns or in the conduct of a Contest or any Tax Contest related to a Tax Return of either Company for any Straddle Period, (A) the non-controlling party, at its sole cost and expense, shall have the right to participate in such Tax Contest, (B) the controlling party shall keep the non-controlling party reasonably informed regarding such Tax Contest (including by providing copies of all material correspondence with the applicable Taxing Authority or other third party), (C) the controlling party shall cause applicable Company to conduct such Tax proceedingContest in good faith, and (D) the controlling party shall not allow the applicable Company to settle or otherwise resolve Tax Contest if such settlement or other resolution relates to Taxes for a Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) without the permission of the non-controlling party (which will not be unreasonably withheld, delayed, or conditioned).
Appears in 1 contract
Tax Contests. (a) After Each party (the Closing Date"Contesting Party") shall have the right, HNC and JVOI shall jointly control at its own expense, to contest the conductamount or validity, through counsel of their own choosingin whole or in part, of any auditImposition for which such party is responsible pursuant to the provisions of this Lease by appropriate proceedings diligently conducted in good faith. Upon the termination of any proceedings, claim it shall be the obligation of the Contesting Party to pay the amount of such Imposition or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees, interests, penalties or other liabilities in connection therewith. Nothing herein contained, however, shall be so construed as to allow such Imposition to remain unpaid for refundsuch length of time as shall permit the Entire Tract, or administrative any part thereof, to be sold, taken or judicial proceeding involving otherwise adversely affected by any asserted Tax liability or refund Governmental Authority for the non-payment of the same. The Contesting Party shall promptly furnish the other party (the "Non-Contesting Party") with respect copies of all proceedings and documents with regard to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallcontest, and each of them the Non-Contesting Party shall cause have the right, at its Affiliates not toexpense, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayedto participate therein.
(b) HNC and JVOI shall furnish or cause to be furnished to each otherThe Non-Contesting Party will, upon requestat the request of the Contesting Party, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary Contesting Party in connection with the filing Contesting Party's good faith contesting of Tax Returns the amount or validity, in whole or in part, of any Imposition. In that connection, the conduct Non-Contesting Party shall execute, within fifteen (15) days after receipt of a Contest or other Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to therefor, any such destruction, abandonment or disposition and (iii) allow all documents reasonably requested by the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary Contesting Party in connection with the filing of Tax Returns or foregoing. The Contesting Party shall reimburse the Non-Contesting Party for all out-of-pocket expenses incurred by the Non-Contesting Party (including reasonable attorney's fees) in the conduct of a Contest or other Tax proceedingperforming its obligations under this Section 4.8.
Appears in 1 contract
Tax Contests. (ai) After If any Taxing Authority asserts a Tax Claim, then the Closing Dateparty to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties to this Agreement; provided, HNC and JVOI that the failure of such party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other party of any auditof its obligations under this Section 5.20, claim except to the extent that the other party is actually and materially prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(ii) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to a Transferred Entity for any Pre-Closing Taxable Periods Tax Period (other than a Tax Proceeding described in Section 5.20(j)(iii) or Straddle Periods Section 5.20(j)(iv)), the Seller shall have the exclusive right to control such Tax Proceeding; provided, that (any A) the Seller shall provide the Purchaser with a timely and reasonably detailed account of each material development of such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, Proceeding and each of them (B) the Seller shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that if Seller is contesting its obligation to indemnify the Purchaser for any Taxes for any Pre-Closing Tax Period subject to such Tax Proceeding, such consent may be withheld in the Purchaser’s sole discretion). The Seller may elect in writing not to control any Tax Proceeding that the Seller otherwise has the right to control pursuant to the preceding sentence. If the Seller makes such election with respect to a Tax Proceeding, the Purchaser shall have the right and obligation to conduct such Tax Proceeding, and the provisions of Section 5.20(j)(iii) shall apply, mutatis mutandis, with respect to such Tax Proceeding.
(iii) In the case of a Tax Proceeding of or with respect to a Transferred Entity for any Straddle Period or otherwise involving both Taxes that are the responsibility of Purchaser and Taxes that are the responsibility of Seller pursuant to this Agreement (other partythan a Tax Proceeding described in Section 5.20(j)(iv)), the Purchaser shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided, that (A) the Purchaser shall provide the Seller with a timely and reasonably detailed account of each material development of such Tax Proceeding, (B) the Purchaser shall consult with the Seller before taking any significant action in connection with such Tax Proceeding, (C) the Purchaser shall consult with the Seller and offer the Seller an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (D) the Seller shall be entitled to participate in such Tax Proceeding at its own expense and attend any meetings or conferences (including phone conferences) with the relevant Taxing Authority, and (E) the Purchaser shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Seller, which consent shall not be unreasonably withheld withheld, conditioned or delayed; provided that the Seller shall not have any rights with respect to the portion of such Tax Proceeding (and any actions, written materials, meetings or conferences relating thereto) that could not reasonably be expected to affect the Liability of, or otherwise have an adverse effect on, the Seller.
(biv) HNC and JVOI shall 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 Notwithstanding anything to the HNC Business contrary in this Agreement, the Seller Group shall have the exclusive right to control in all respects, and neither the Schnitzer Business as is reasonably requested for the filing Purchaser nor any of its Subsidiaries or Affiliates shall be entitled to participate in, any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Proceeding with respect to (A) any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records Return of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Seller or any portions of such records, its Subsidiaries or Affiliates (ii) transfer such records to other than the other party upon its written request prior to any such destruction, abandonment or disposition Transferred Entities); and (iiiB) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing any Tax Return of any Seller Consolidated Group (including any Combined Tax Returns or in the conduct of a Contest or other Tax proceedingReturn).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Pitney Bowes Inc /De/)
Tax Contests. (ai) After If a claim shall be made by any taxing authority (a “Tax Claim”) which, if successful, might result in an indemnity payment pursuant to Section 7.4(e), the Closing Dateparty receiving notice of such claim shall promptly notify the other party of such Tax Claim; provided that the failure by an indemnified party to provide prompt notification shall not relieve the indemnifying party of its indemnification obligations hereunder except to the extent that the indemnifying party is materially prejudiced thereby in defending such Tax Claim.
(ii) Except as otherwise provided in Section 7.4(f)(iii), HNC and JVOI the Sellers shall jointly control the conduct, through counsel of their own choosing, of all proceedings relating to any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund Claim with respect to a Retained Tax Liability and make all decisions in connection with such Tax Claim (including, without limitation, selection of counsel) and, without limiting the HNC Business foregoing, may in their sole discretion pursue or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (forego any such auditand all administrative appeals, claim for refundproceedings, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallhearings and conferences with any taxing authority with respect thereto, and each of them may, in their sole discretion, either pay the Tax claimed and ▇▇▇ for a refund (where applicable law permits such refund suits) or contest the Tax Claim in any permissible manner; provided the Sellers shall cause its Affiliates not totake any position, settleunless required by Law, compromise and/or concede any portion that could reasonably be expected to have a Material Adverse Effect on the Purchaser Group without consulting with the Purchaser Group regarding such position. The Purchaser Group shall be entitled to be informed of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, Tax Claim within a reasonable time after such information (including access to books and records) and assistance relating to the HNC Business Tax Claim is asserted and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) developments with respect to such Tax Claim at any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidentialadministrative meeting, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest conference, hearing or other Tax proceeding.
(ciii) Each of HNC Subject to the Lease and JVOI shallexcept as otherwise provided in Section 7.4(f)(ii), the Purchaser Group shall control all proceedings with respect to Taxes related to the Purchased Assets and the Facility for any taxable period beginning after the Closing Date.
(iv) The Sellers and the Purchaser Group shall jointly control any proceedings with respect to real and personal property Taxes relating to the Purchased Assets for any Straddle Period.
(v) The Purchaser Group and its Affiliates, on the one hand, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party Sellers and their respective agents Affiliates, on the other, shall cooperate in contesting any Tax Claim, which cooperation shall include the retention and representatives, at times and dates reasonably and mutually acceptable (upon request) the provision to the partiesrequesting party of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to from time provide additional information or explanation of any material provided hereunder or to time inspect and review testify at proceedings relating to such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingClaim.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Abraxis BioScience, Inc.)
Tax Contests. (a) After If any taxing authority asserts a Tax Claim, then the Closing DateParty first receiving notice of such Tax Claim shall provide prompt written notice thereof to the other Party; provided, HNC and JVOI however, that the failure of such Party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other Party of any auditof its obligations under this Article VII, claim except to the extent that the other Party is prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the taxing authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to either of the HNC Business Companies or the Schnitzer Business relating to any of their respective Subsidiaries for any Pre-Closing Taxable Periods Tax Period or any Straddle Periods Tax Period (in each case, other than a Tax Proceeding described in Section 7.7(c)), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided, however, that (i) the Controlling Party shall provide the non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such auditTax Proceeding, claim for refund(iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, or proceeding relating (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to an asserted participate in such Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallProceeding, and each of them (vi) the Controlling Party shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyNon-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
; provided, further, however, that the Controlling Party shall not have any obligations (b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for Non-Controlling Party shall not have any rights) under the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) immediately foregoing proviso with respect to any portion of such Tax Proceeding (and each party shall execute and deliver such powers any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of attorney and other documents as are necessary to carry out the intent its Affiliates. For purposes of this Section 9.1(b). Any information obtained under this Section 9.1(b) Agreement, “Controlling Party” shall be kept confidentialmean Seller in the case of any Tax Proceeding of or with respect to either of the Companies for any Pre-Closing Tax Period or, except as may be otherwise necessary in the case of any Tax Proceeding of or with respect to either of the Companies for any Straddle Tax Period, Seller if Seller and its Affiliates - 58 - are reasonably expected to bear the greater Tax liability in connection with the filing of such Tax Returns Proceeding, or in the conduct of a Contest or other Tax proceeding.
(c) Each of HNC Purchaser if Purchaser and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts are reasonably expected to properly retain and maintain bear the greater Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary liability in connection with such Tax Proceeding; and “Non-Controlling Party” means whichever of Seller or Purchaser is not the filing of Controlling Party with respect to such Tax Returns or in the conduct of a Contest or other Tax proceedingProceeding.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement
Tax Contests. (a) After the Closing Date, HNC and JVOI except as set forth in this Section 7.2, Buyer (on behalf of the Company) shall jointly control the conduct, through counsel of their its own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods Company (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as each a “Tax Contest”). Neither HNC nor JVOI shallNotwithstanding the foregoing, and each in the case of them a Tax Contest involving any non-Income Tax liability that relates to any Pre-Closing Tax Period or Straddle Period, Seller shall cause its Affiliates not to, settle, compromise and/or concede any portion have the right to control the conduct of such Tax Contest; provided, however, that (a) in the case of any such Tax Contest controlled by Seller, (i) Buyer shall have the right to participate in such Tax Contest at its own expense and (ii) Seller shall not allow the Company to settle or otherwise resolve such Tax Contest without the consent prior written permission of the other partyBuyer, which consent shall not be unreasonably withheld withheld, delayed, or delayed.
conditioned, and (b) HNC and JVOI shall 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 in the HNC Business and the Schnitzer Business as is reasonably requested for the filing case of any Tax Returns Contest that is not controlled by Seller pursuant to this Section 7.2, (i) Seller shall have the right to participate in such Tax Contest at its own expense and (ii) Buyer shall not allow the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving Company to settle or otherwise relating resolve such Tax Contest without the prior written permission of Seller, which consent shall not be unreasonably withheld, delayed, or conditioned, in each case only to the HNC Business or extent such Tax Contest could result in Seller being liable pursuant to this Agreement. In the Schnitzer Business (or their income or assets) with respect case of a Tax Contest involving the Forms 1065, Seller shall take, and cause its Affiliates to any Tax and each party shall execute and deliver take, such powers of attorney and other documents actions as are necessary needed to carry out cause the intent Company to (x) cause Buyer to be designated as the “partnership representative” (as defined in Section 6223(a) of the Code) of the Company (including by executing IRS Form 8979 or such successor or similar form or authorization prescribed for such purpose (and any corresponding or similar form required to approve such similar designations under applicable state or local Law) and (y) make a timely “push out” election under Section 6226(a) of the Code (and any corresponding or similar provision of state or local Tax Law) for such taxable year. The provisions of this Section 9.1(b7.2, rather than those in Section 8.3(a). Any information obtained under this Section 9.1(b) , shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or apply in the conduct case of a Contest or other any Tax proceedingContest.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Amneal Pharmaceuticals, Inc.)
Tax Contests. (a) After The Unit Holder Representative shall have the right to control and Coty shall have the right to participate in (at its own expense), any audit, litigation, or other proceeding with respect to any Pre-Closing Tax Return and/or any Pre-Closing Tax Period (a “Pre-Closing Tax Contest”); provided that to the extent any settlement or compromise of a Pre-Closing Tax Contest would have the effect of increasing a Tax liability of the Company or any of its Subsidiaries or owners in a taxable period or portion thereof ending after the Closing Date, HNC and JVOI the Unit Holder Representative shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to not settle such Pre-Closing Taxable Periods or Straddle Periods Tax Contest without Coty’s prior written consent (any such auditnot to be unreasonably withheld, claim for refundconditioned, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”delayed). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI The Company or NewCo (as applicable) shall furnish or cause have the right 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 HNC Business control and the Schnitzer Business as is reasonably requested for Unit Holder Representative shall have the filing of right to participate in (at its own expense), any Tax Returns and the preparationaudit, prosecutionlitigation, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Straddle Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary Return and/or any Straddle Tax Period (a “Straddle Tax Contest”); provided that to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns extent any settlement or in the conduct compromise of a Straddle Tax Contest or other would have the effect of increasing a Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records liability of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Company or any portions of its Subsidiaries or owners in a taxable period or portion thereof beginning on or before the Closing Date, the Company or NewCo shall not settle such records, Straddle Tax Contest without the Unit Holder Representative’s prior written consent (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are not to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidentialunreasonably withheld, except as may be otherwise necessary in connection with the filing of Tax Returns conditioned, or in the conduct of a Contest or other Tax proceedingdelayed).
Appears in 1 contract
Sources: Contribution Agreement (Coty Inc.)
Tax Contests. (a) After Purchaser, on the one hand, and Seller, on the other hand (the “Recipient”), shall notify Seller or Purchaser, as the case may be, in writing within 30 days of receipt by the Recipient of written notice of any Tax Contest which may affect the liability for Taxes of such other party under this Agreement. 434397/HOUDMS
(b) If the Tax Contest relates (i) to any Pre-Closing DatePeriod or Straddle Period, HNC and JVOI shall jointly or (ii) to any Retained Taxes, Seller shall, at its expense, control the conduct, through counsel defense and settlement of their own choosing, such Tax Contest and shall pay any Tax which arises from such Pre-Closing Period Tax Contest and Seller’s portion of any auditTax which arises from such Straddle Period Tax Contest, claim and Purchaser shall pay Purchaser’s portion of any Tax which arises from such Straddle Period Tax Contest; provided that Seller may decline to participate in such Pre-Closing Period or Straddle Period Tax Contest, in which case Purchaser shall control the defense and settlement of the Tax Contest without prejudice to Seller’s obligation to pay any Tax that may arise from such Tax Contest and Seller shall reimburse Purchaser for refundthe related expense that it has incurred.
(c) If the Tax Contest relates solely to Other Taxes, Purchaser shall, at its expense, control the defense and settlement of such Tax Contest.
(d) The Party in control of the defense or administrative or judicial proceeding involving settlement of any asserted Tax liability or refund Contest with respect to which the HNC Business or other Party may have liability under this Agreement shall keep the Schnitzer Business relating other Party informed of the progress of such Tax Contest, provide copies of all relevant correspondence and other Tax Contest documents to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallthe other Party, and each allow them to participate at their own expense. The Party in control of them shall cause its Affiliates the defense or settlement of a Tax Contest may not to, settle, compromise and/or concede settle such Tax Contest in any portion manner which would adversely affect the other Party without the written consent of such Contest without the consent of the other party, Party (which consent shall not be unreasonably withheld or delayed.
(b) HNC delayed and JVOI shall furnish or cause in any event be deemed 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 HNC given if no response is received within seven Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct Days of a Contest or other Tax proceedingParty’s request).
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Weatherford International PLC)
Tax Contests. (a) After Each of the Closing DateBuyer, HNC the Purchased Companies, the Retained Subsidiaries and JVOI Seller shall jointly control promptly notify the conduct, through counsel of their own choosing, other parties in writing upon the receipt from a relevant Taxing Authority of any audit, claim for refund, or administrative or judicial notice of a Tax proceeding involving any asserted Tax liability or refund with respect that could reasonably be expected to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating give rise to an asserted indemnification obligation of any other party or its Affiliates under this Agreement, affect the Taxes allocated to any other party or its Affiliates pursuant to Section 8.02 or affect the Tax liability referred Attributes allocated to herein as any other party or its Affiliates pursuant to Section 8.03 (each a “Tax Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other ; provided that a party, which consent ’s right to indemnification shall not be unreasonably withheld or delayedlimited by a failure to so notify except to the extent that the Indemnifying Party is actually prejudiced by such failure. Such notice shall include a copy of the relevant portion of any correspondence received from the Taxing Authority and shall specify in reasonable detail the basis for such Tax Contest if not readily apparent from such correspondence.
(b) HNC and JVOI Seller shall furnish have exclusive control over any Tax Contest in respect of any Seller Group Return; provided, that, if any such Tax Contest could impact any Tax liability or cause to be furnished to each other, upon request, as promptly as practicable, such information Tax item of Buyer or its Affiliates (including access the Purchased Companies) after the Closing, Seller shall keep Buyer reasonably informed with respect to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any such Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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 proceedingContest.
(c) Each With respect to Tax Contests relating to any Tax liability allocated to Seller pursuant to Section 8.02 (other than those addressed by Section 8.04(b), which shall be governed by Section 8.04(b) in the event of HNC a conflict between Section 8.04(b) and JVOI shallthis Section 8.04(c)), Seller shall control such Tax Contests; provided that (A) the non-controlling party will have the right, at its sole cost and shall cause its Affiliates to: expense, to participate in any such Tax Contest, (iB) use its commercially reasonable efforts if the non-controlling party chooses not to properly retain and maintain participate, the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall controlling party will provide the other non-controlling party with written notice prior to any destruction, abandonment or disposition a timely and reasonably detailed account of all or any portions each stage of such recordsTax Contest and (C) the controlling party will not settle or compromise any such Tax Contest without the non-controlling party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) (clauses (A), (iiB) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iiiC) allow together, “Non-Controlling Party Rights”)
(d) After the other party Closing, Buyer shall (at its sole cost and their respective agents expense) have the right to control any Tax Contest not described in Section 8.04(b) or Section 8.04(c) and representatives, at times and dates reasonably and mutually acceptable any Tax Contest that Seller opts not to the parties, to from time to time inspect and review such records as such other party may deem necessary or appropriatecontrol (by declining in writing); provided, however, that in all casesthat, with respect to any such activities are Tax Contest related to Taxes allocated to Seller pursuant to Section 8.02 or Tax Attributes allocated to Seller pursuant to Section 8.03 or relating to Taxes for which Seller or any of its Affiliates (other than a Purchased Company) could otherwise reasonably be expect to be conducted during normal business hours. Any information obtained liable under this Section 9.1(c) Applicable Law or hereunder, Seller 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 proceedinghave Non-Controlling Party Rights.
Appears in 1 contract
Tax Contests. (a) After If any Taxing Authority asserts a Tax Claim, then the Closing Date, HNC and JVOI party to this Agreement first receiving notice of such Tax Claim promptly shall jointly control provide written notice thereof to the conduct, through counsel other party or parties to this Agreement; provided that the failure of their own choosing, such party to give such prompt notice shall not relieve the other party of any auditof its obligations under this Article VI, claim except to the extent that the other party is materially prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Business Transferred Ag Subsidiaries for any taxable period ending on or before the Schnitzer Business relating Closing Date (other
(c) In the case of a Tax Proceeding of or with respect to Preany of the Transferred Ag Subsidiaries for any Straddle Period (other than a Tax Proceeding described in Section 6.5(d)), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided that (i) the Controlling Party shall provide the Non- Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Closing Taxable Periods Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or Straddle Periods furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and attend any such audit, claim for refund, meetings or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallconferences with the relevant Taxing Authority, and each of them (vi) the Controlling Party shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyNon-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
; provided, further, that the Controlling Party shall not have any obligations (b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of Non-Controlling Party shall not have any Tax Returns and the preparationrights) under clause (i), prosecution(ii), defense (iii) or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assetsv) above with respect to any portion of such Tax Proceeding (and each party shall execute and deliver such powers any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of attorney and other documents as are necessary to carry out the intent its Affiliates. For purposes of this Section 9.1(b). Any information obtained under this Section 9.1(b) Agreement, “Controlling Party” shall be kept confidential, except as may be otherwise necessary mean Descartes if Descartes and its Subsidiaries are reasonably expected to bear the greater Tax liability in connection with the filing of such Tax Returns Proceeding, or in the conduct of a Contest or other Tax proceeding.
(c) Each of HNC Fermat if Fermat and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts are reasonably expected to properly retain and maintain bear the greater Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary liability in connection with such Tax Proceeding; and “Non- Controlling Party” means whichever of Descartes or Fermat is not the filing of Controlling Party with respect to such Tax Returns or in the conduct of a Contest or other Tax proceedingProceeding.
Appears in 1 contract
Sources: MSW Transaction Agreement (FMC Corp)
Tax Contests. Buyer and the Companies agree to give written notice to the Seller of the receipt of any notice by Buyer, any Company or any of its or their respective Affiliates which involves the assertion of any Tax matter that (a) After would reasonably be expected to result in an indemnification claim by Buyer Indemnities against the Closing DateSeller pursuant to this Agreement or (b) would result in any one or more of the Mergers failing to qualify as a reorganization within the meaning of Section 368(a)(1)(A) of the Code (each being a “Tax Contest”), HNC and JVOI in each case, within ten (10) Business Days of receipt of such notice; provided, that the failure to give such notice shall jointly not affect the indemnification provided hereunder except to the extent the indemnifying party has been materially prejudiced as a result of such failure. Notwithstanding anything herein to the contrary, including Article X, the Seller shall have the right, but not the obligation, to control the conductsuch Tax Contest, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted unless such Tax liability or refund Contest is with respect to a Straddle Period, in which case Buyer shall have the HNC Business or right, but not the Schnitzer Business relating obligation, to Precontrol such Tax Contest; provided that in either case, the non-Closing Taxable Periods or Straddle Periods (any controlling Party shall be kept fully informed by the controlling Party, the controlling Party shall consult with the non-controlling Party in good faith, the non-controlling Party shall have the right to participate in such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of the Party controlling such Tax Contest without will obtain the prior written consent of the other party, non-controlling Party (which consent shall will not be unreasonably withheld withheld, delayed, or delayed.
(bconditioned) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of before entering into any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct settlement of a Contest claim or other Tax proceedingceasing to defend such claim.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Merger Agreement (CareMax, Inc.)
Tax Contests. The Indemnitor and its representatives, at the Indemnitor's expense, shall be entitled to participate (a) After in all conferences, meetings and proceedings with any Tax Authority, the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel subject matter of their own choosing, of any audit, claim for refund, which is or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to includes an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallIndemnity Issue, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish in all appearances before any court, the subject matter of which is or cause to be furnished to each other, upon request, as promptly as practicable, such information includes an Indemnity Issue. The party which has responsibility for filing the Tax Return under this Agreement (including access to books and records) and assistance relating to hereinafter the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets"RESPONSIBLE PARTY") with respect to which there could be an increase in liability for any Tax or with respect to which a payment could be required hereunder shall have the right to decide as between the parties hereto how such matter is to be dealt with and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection finally resolved with the filing of appropriate Tax Returns or in the conduct of a Contest or other Tax proceeding.
(c) Each of HNC and JVOI shall, Authority and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain control all audits and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatesimilar proceedings; provided, however, that in all cases, such activities are Goodrich shall be treated as the Responsible Party with respect to ▇▇▇ ▇▇▇ Return filed by any member of the EnPro Tax Group for any Pre-Distribution Taxable Period ending on or before the acquisition of Coltec by Goodrich. If no Tax Return is or was required to be conducted during normal business hoursfiled in respe▇▇ ▇▇ ▇▇ Indemnity Issue, the Indemnitor shall be treated as the Responsible Party with respect thereto. Any information obtained The Responsible Party agrees to cooperate with the other party in the settlement of any Indemnity Issue and to take such other party's interests into account. Notwithstanding any other provision of this Agreement, if Goodrich has materially satisfied its obligations under this Agree▇▇▇▇ ▇▇▇ EnPro fails to permit Goodrich to control any audit or proceeding regarding any Indemnit▇ ▇▇▇▇▇ relating to (a) the qualification of the Distribution as tax-free to Goodrich under Section 9.1(c361(c) shall be kept confidential, except as may be otherwise necessary in connection with of the filing of Tax Returns Code or (b) the qualification ▇▇ ▇▇▇ transaction undertaken pursuant to the Transaction Agreements or described in the conduct Ruling Request or the Tax Opinion as a transaction described in Section 355 of the Code, a Contest "reorganization" within the meaning of Section 368(a)(1)(D) of the Code, or other an otherwise tax-free transaction, then Goodrich shall not be liable for and shall not indemnify the EnPro ▇▇▇ ▇▇▇up for any Tax proceedingdeficiency resulting from an adverse determination of such Indemnity Issue.
Appears in 1 contract
Tax Contests. (a) After If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute or other claim by, before or against a Taxing Authority (a "Tax Audit") shall be delivered, sent, commenced or initiated, in writing, to or against the Closing DateSeller, HNC the Purchasers or any of their respective Affiliates (a "Notified Party") by any Taxing Authority with respect to Taxes for which the other party may reasonably be expected to be liable pursuant to Sections 5.9.1 or 5.9.2, the Notified Party shall notify the other party in writing of such Tax Audit; provided, however, that the failure to provide prompt notice as provided herein shall not relieve the other party of its indemnity obligations except to the extent that such other party is actually prejudiced thereby.
(b) From and JVOI after the date hereof, the Seller shall jointly control have the conductsole right, through at its own expense, to control, contest, resolve, settle and defend, and represent each of the Transferred Subsidiaries' interests in, any Tax Audit to the extent such Tax Audit relates to any Excluded Taxes (and any Tax Audit of any Consolidated Group of which the Seller (or any successor thereto or parent company thereof) is the common parent) and to employ counsel of their own choosingits choice at its expense; provided, however, that if such Tax Audit (A) is for a Tax Return that is not referred to in Section 5.9.3(a)(iii) and is not referred to in Section 5.9.3(a)(iv) and is not a Tax Audit of any audit, claim for refund, Consolidated Group of which the Seller (or administrative any successor thereto or judicial proceeding involving any asserted Tax liability or refund parent company thereof) is the common parent and (B) would bind the Transferred Subsidiaries with respect to the HNC Business or the Schnitzer Business relating to PrePost-Closing Taxable Periods or Straddle Periods Period and (any such auditC) would reasonably be expected to have a Material Adverse Effect on the Water Business for the Post-Closing Period, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them then there shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest be no settlement with respect thereto without the consent of the other partyParent Purchaser, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI provided that if the Parent Purchaser withholds consent, then the Seller's responsibility for Taxes shall furnish or cause to be furnished to each otherno greater than it would have been under the proposed settlement); provided further, upon requesthowever, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) that with respect to (I) any Tax Audit relating to any Tax liability of the Transferred Subsidiaries for a Pre-Closing Period arising as a result of the application of Treasury Regulation ss. 1.1502-6 or any similar provision of state, local or foreign Tax Law for which the Seller is not obligated to indemnify the Purchasers pursuant to Section 5.9.1(c) or (II) a claim with respect to a Deferred Business in a Tax Audit of any Consolidated Group of which Parent Purchaser or any of its Affiliates (other than a Transferred Subsidiary) is the common parent, the Purchasers shall have the sole right (as between the Purchasers and the Seller) to conduct, contest, resolve, settle and defend and represent each of the Transferred Subsidiaries' interests (except that, in the case of clause (II) , (x) Parent Purchaser shall defend any such claim in good faith and on the same basis as if Parent Purchaser were the party shall execute in interest with respect to such claim and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b(y) shall be kept confidential, except as may be otherwise necessary Seller's responsibility for Excluded Taxes in connection with any such Tax Audit shall be determined by the filing Independent Accountant taking into account the reasonableness of Tax Returns or the settlement in light of the conduct merits of a Contest or other Tax proceedingthe claim).
(c) Each In the case of HNC and JVOI shalla Tax Audit for a Straddle Period, and shall cause its Affiliates to: the Seller (i) use its commercially reasonable efforts to properly retain and maintain if the Tax and accounting records of Audit involves the HNC Business and Reorganization or if the Schnitzer Business claim for Taxes that relate are Excluded Taxes exceeds or reasonably could be expected to Pre-Closing Taxable Periods exceed in amount the claim for Taxes that are not Excluded Taxes) or Straddle Periods and otherwise the Purchasers (the Seller or the Purchasers, as the case may be, the EXECUTION COPY -------------- "Controlling Party") shall provide be entitled to control all proceedings taken in connection with the other party with written notice prior to any destruction, abandonment or disposition of all or any portions defense of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateTax Audit; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(cthe other party (the "Non-Controlling Party") shall be kept confidential, except as may be otherwise necessary in connection with entitled to participate fully (at the filing of Tax Returns or Non-Controlling Party's expense) in the conduct of a Contest such Tax Audit, and the Controlling Party shall not settle any such Tax Audit without the Non-Controlling Party's consent (which consent will not be unreasonably withheld) (provided that if the Non-Controlling Party withholds consent, then the Controlling Party's responsibility for Taxes shall be no greater than it would have been under the proposed settlement). For the avoidance of doubt, the above provisions of this Section 5.9.4(c) shall not apply to any Tax Audit for any Tax Return referred to in Section 5.9.3(a)(iii) or (iv); such Tax Audits instead shall be governed by Section 5.9.4(b).
(d) The Purchasers shall have the sole right, at their own expense, to control any other Tax Audit (not relating to an Excluded Tax), and contest, resolve, settle and defend against any other assessment, notice of deficiency, or other Tax proceedingadjustment or proposed adjustment relating to any and all Taxes with respect to the Transferred Subsidiaries or the Transferred Assets.
Appears in 1 contract
Tax Contests. (ai) After the Closing DateSelect, HNC at its sole cost and JVOI expense, shall jointly exclusively control the conduct, through counsel of their own choosing, conduct of any audit, claim for refund, examination or administrative or judicial other legal proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent ) related to a Tax Return of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateSelect Consolidated Group; provided, however, that if an issue is raised during such Tax Contest that could affect the Taxes of either Company for a Post-Closing Tax Period, the Sellers shall keep the Buyer reasonably informed regarding the status of such Tax Contest.
(ii) In the case of any Tax Contest relating to Taxes of either Company not described in all casesSection 5.4(e)(i), Buyer shall control provided that upon written notice to the Buyer, the applicable Seller may assume the defense of any such activities are Tax Contest related solely to be conducted during normal business hoursa Tax Return of either Company for any Pre-Closing Tax Period (but not a Straddle Period) (a “Pre-Closing Tax Contest”). Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in In connection with the filing of any Pre-Closing Tax Returns or in the conduct of a Contest or any Tax Contest related to a Tax Return of either Company for any Straddle Period, (A) the non-controlling party, at its sole cost and expense, shall have the right to participate in such Tax Contest, (B) the controlling party shall keep the non-controlling party reasonably informed regarding such Tax Contest (including by providing copies of all material correspondence with the applicable Taxing Authority or other third party), (C) the 35 controlling party shall cause applicable Company to conduct such Tax proceedingContest in good faith, and (D) the controlling party shall not allow the applicable Company to settle or otherwise resolve Tax Contest if such settlement or other resolution relates to Taxes for a Pre-Closing Tax Period (including the pre-Closing portion of any Straddle Period) without the permission of the non-controlling party (which will not be unreasonably withheld, delayed, or conditioned).
Appears in 1 contract
Sources: Stock Purchase Agreement
Tax Contests. (a) After Each party that may be entitled to indemnification under this Agreement (a “Tax Indemnified Party”) will provide prompt written notice to the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, other parties of any pending or threatened Tax audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, assessment or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each Contest of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain which the Tax and accounting records of Indemnified Party becomes aware for which the HNC Business and the Schnitzer Business that relate Tax Indemnified Party is indemnified pursuant to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatethis Agreement; provided, however, that any delay or failure to give such prompt written notice will not affect the indemnifying party’s indemnification obligations under this Agreement except to the extent the indemnifying party’s defense of such Tax Contests is adversely prejudiced by such delay. Written notice provided pursuant to this Section 3.6(a) will contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and will be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters.
(b) Each of Parent and ▇▇▇▇▇▇▇▇ Beach will promptly notify the other in writing if it obtains knowledge that any Tax Authority has begun to investigate or inquire into the Spin-Off (whether or not such investigation or inquiry is a formal or informal investigation or inquiry, and whether or not the party obtaining such knowledge has any obligation to indemnify the other with respect to such matter); provided, however, that any delay or failure to give such prompt written notice will not affect the indemnifying party’s indemnification obligations under this Agreement except to the extent the indemnifying party’s defense of such Tax Contest is adversely prejudiced by such delay. Such notice will contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and will be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters. Each of the parties will
(i) consult with the other from time to time as to the conduct of such investigation or inquiry, (ii) provide the other with copies of all casescorrespondence provided on its behalf (or on behalf of any member of the Parent Group or the ▇▇▇▇▇▇▇▇ Beach Group) to such Tax Authority with respect to such investigation or inquiry, such activities are and (iii) arrange for a representative of the other to be present at (but not participate in, except as otherwise provided in Section 3.6(d) below) all meetings with such Tax Authority pertaining to such investigation or inquiry.
(c) Promptly upon receipt of notice as provided in Section 3.6(a), the indemnifying party will confirm in writing to the Tax Indemnified Party that the liability asserted in the notice of deficiency, claim or adjustment or other written communication would, if imposed upon or incurred by the Tax Indemnified Party, be an Indemnified Liability, unless the indemnifying party believes in good faith that such liability would not be an Indemnified Liability in which case it will set forth in writing to the Tax Indemnified Party the grounds for such belief. (d) Any proceeding that may result in an Indemnified Liability, which is acknowledged as such by indemnifying party pursuant to Section 3.6(c) hereof, will be conducted in accordance with this Section 3.6(d) hereof.
(i) Promptly upon the indemnifying party’s written acknowledgment that the asserted liability is an Indemnified Liability pursuant to Section 3.6(c) hereof, the indemnifying party will assume and direct the defense or settlement of the Tax Contest, subject to the participation and consultation of the Tax Indemnified Party. If the Indemnified Liability is grouped with other unrelated asserted liabilities or issues in the proceeding, the Tax Indemnified Party and the indemnifying party will use their respective commercially reasonable efforts to cause the Indemnified Liability to be the subject of a separate Tax Contest. If such severance is not possible, the indemnifying party will assume and direct and be responsible only for the matters relating to the Indemnified Liability.
(ii) The indemnifying party will pay all expenses related to the Indemnified Liability, including fees for attorneys, accountants, expert witnesses or other consultants retained by it and, to the extent that any such expenses have been or are paid by the Tax Indemnified Party, the indemnifying party will promptly reimburse the Tax Indemnified Party therefor.
(iii) The Tax Indemnified Party will not pay (unless otherwise required by a proper notice of assessment and after prompt notification to the indemnifying party of the Tax Indemnified Party’s receipt of notice and demand for payment), settle, compromise or concede any portion of the Indemnified Liability without the written consent of the indemnifying party. The Tax Indemnified Party will, at the indemnifying party’s sole cost (including any reasonable out-of-pocket costs incurred by the Tax Indemnified Party), take such action as the indemnifying party may reasonably request (including the execution of powers of attorney for one or more persons designated by the indemnifying party and the filing of a petition, complaint, amended Tax Return or claim for refund) in contesting the Indemnified Liability. The indemnifying party will, on a timely basis, keep the Tax Indemnified Party informed of all developments in the proceeding and provide the Tax Indemnified Party with copies of all pleadings, briefs, orders, and other written papers pertaining thereto.
(iv) Subject to satisfaction of the conditions herein set forth, the indemnifying party may direct the Tax Indemnified Party to settle the Indemnified Liability on such terms and for such amount as the indemnifying party may direct. The Tax Indemnified Party may condition such settlement on receipt, prior to the settlement, from the indemnifying party of the indemnity payment with respect to the Indemnified Liability less any amounts to be paid directly by the indemnifying party to the Tax Authority. The indemnifying party may direct the Tax Indemnified Party, at the indemnifying party’s expense, to pay an asserted deficiency for the Indemnified Liability out of funds provided by the indemnifying party, and to file a claim for refund. (e) Should the indemnifying party not provide the Tax Indemnified Party with the confirmation contemplated by Section 3.6(c) hereof within thirty (30) days following receipt of notice provided in Section 3.6(a) hereof, or should the Tax Indemnified Party reasonably determine after due investigation that the indemnifying party may not be able to pay the full amount of the Indemnified Liability, if required, and the indemnifying party fails to furnish a guarantee or performance bond satisfactory to the Tax Indemnified Party in an amount equal to the amount of the Indemnified Liability then being asserted by the Tax Authority, then the Tax Indemnified Party may assume control of the Tax Contest in accordance with this Section 3.6(e).
(i) The Tax Indemnified Party will diligently defend against the claim of the Tax Authority, including the pursuit of the appeal of any adverse determinations to the appropriate tribunal (unless advised in writing by independent outside counsel in its reasonable judgment at the indemnifying party’s sole cost that the Tax Indemnified Party would not prevail upon any such appeal) and will employ such resources, including independent counsel, in conducting such defense as are reasonably commensurate to the nature and magnitude of the claim.
(ii) The Tax Indemnified Party will consult with the indemnifying party as to the conduct of all proceedings, will provide the indemnifying party with copies of all protests, pleadings, briefs, filings, correspondence and similar materials relative to the proceedings and will arrange for a representative of the indemnifying party to be present at (but not to participate in) all meetings with the relevant Tax Authority and all hearings before any court.
(iii) The Tax Indemnified Party will not settle, compromise or concede any claim that would result in an Indemnified Liability unless the Tax Indemnified Party has made the determination, and has been so advised in writing by independent outside counsel at the indemnifying party’s sole expense, that such settlement is reasonable in the circumstance. (f) Unless otherwise agreed in writing, the indemnifying party will pay to the Tax Indemnified Party the amount with respect to an Indemnified Liability (less any amount paid directly by the indemnifying party to the Tax Authority or made available to the Tax Indemnified Party under Section 3.6(e) hereof) at least two Business Days prior to the date payment of the Indemnified Liability is to be made to the Tax Authority. Such payment will be paid by the indemnifying party to the Tax Indemnified Party by wire transfer of immediately available funds to an account designated by the Tax Indemnified Party by written notice to the indemnifying party at least 15 business days prior to the due date of such payment. If the indemnifying party delays making payment beyond the due date hereunder, it will pay interest to the Tax Indemnified Party on the amount unpaid at the rate of the monthly average of the “prime rate” as published in the Wall Street Journal for each day and the actual number of days for which any amount due hereunder is unpaid; provided, however, that this provision for interest will not be construed to give the indemnifying party the right to defer payment beyond the due date hereunder. (g) Should the Tax Indemnified Party or any member of the Parent Group or ▇▇▇▇▇▇▇▇ Beach Group, as applicable, receive a refund in respect of amounts paid by the indemnifying party to any Tax Authority on the Tax Indemnified Party’s behalf, or paid by the indemnifying party to the Tax Indemnified Party for payment to a Tax Authority, or should any such amounts that would otherwise be refundable to the Tax Indemnified Party be applied or credited by the Tax Authority to obligations of the Tax Indemnified Party or any member of the Parent Group or ▇▇▇▇▇▇▇▇ Beach Group, as applicable, unrelated to an Indemnified Liability, then the Tax Indemnified Party will, promptly following receipt (or notification of credit), remit such refund (including any statutory interest that is included in such refund or credited amount) to the indemnifying party. (h) Subject to the provisions of Section 3.3 hereof, Parent and ▇▇▇▇▇▇▇▇ Beach will reasonably cooperate with one another in a timely manner in any Tax Contest involving any matter that may result in an Indemnified Liability. Parent and ▇▇▇▇▇▇▇▇ Beach agree that such cooperation will include making available to the other party, during normal business hours. Any information obtained under this Section 9.1(c, all books, records and information, officers and employees (without substantial interruption of employment) shall be kept confidential, except as may be otherwise necessary or useful in connection with the filing any such judicial or administrative Tax Contest. The party requesting or otherwise entitled to any books, records, information, officers or employees pursuant to this Section 3.6(h) will bear all reasonable out-of-pocket costs and expenses (except reimbursement of Tax Returns salaries, employee benefits and general overhead) incurred in connection with providing such books, records, information, officers or in the conduct of a Contest or other Tax proceeding.employees. ARTICLE IV Employee Matters 4.1
Appears in 1 contract
Sources: Spin Off Agreement
Tax Contests. (a) After the Closing Date, HNC the Buyer, the Group Companies and JVOI the Seller, respectively, shall jointly control inform the conduct, through counsel other Parties as soon as practicable in writing of their own choosing, the commencement of any claim, audit, claim for refundinvestigation, examination, or administrative other proceeding or judicial proceeding involving any asserted self-assessment relating in whole or in part to a Tax liability Return for a Tax period ending on or refund with respect to including the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods Date (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”). Neither HNC nor JVOI shallThe Seller shall have the right to represent the interests of the Group Companies in, and each of them control, any and all Tax Contests; provided, that, the Buyer shall cause have the right to participate in any such Tax Contest and to employ counsel at its Affiliates not to, settle, compromise and/or concede any portion own expense and choice for purposes of such participation. The Seller shall keep the Buyer reasonably informed of any Tax Contest and shall not agree or consent to compromise or settle any Tax Contest without the Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed). If the Seller does not elect to represent the interests of the other partyGroup Companies or control a Tax Contest, which consent then the Buyer shall represent the rights of the Group Companies in, and control, such Tax Contest; provided, that in such case the Seller shall have the right to participate in any such Tax Contest and to employ counsel at its own expense and choice for purposes of such participation; and provided, further, that the Buyer shall keep the Seller reasonably informed of any such Tax Contest and shall not agree or consent to compromise or settle any such Tax Contest without the Seller’s prior written consent (not to be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall 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 ). Notwithstanding anything herein to the HNC Business contrary, unless the Seller and the Schnitzer Business as is reasonably requested for Buyer, in their sole discretion, both agree otherwise, a “push-out” election shall be made by the filing applicable Group Company under Section 6226 of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business Code (or their income any similar or assetsanalogous election under state, local or non-U.S. law) with respect to any imputed underpayment (or similar amount under state, local or non-U.S. Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary law) that is allocable to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide Tax Period for taxable years in which Subchapter C of Chapter 63, as amended by the other party with written notice prior to any destructionBipartisan Budget Act of 2015, abandonment or disposition of all or any portions of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateapplies; provided, howeverthat if a “push-out” election is made by the Company, that in all cases, such activities are to a “push-out” election shall also be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingmade by BHMS LP.
Appears in 1 contract
Sources: Equity Purchase Agreement (BrightSphere Investment Group Inc.)
Tax Contests. (ai) After If any Governmental Authority issues to the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel Company a notice of their own choosing, of any audit, claim for refunddeficiency, or administrative of its intent to audit or judicial conduct another proceeding involving any asserted Tax liability or refund with respect to a Tax Return or Taxes of the HNC Business or the Schnitzer Business relating to Company, either (1) for any Pre-Closing Taxable Periods Tax Period or Straddle Periods Period; (any such audit, claim 2) that could give rise to a liability for refund, which the Seller is responsible under this Agreement; or proceeding relating to an asserted (3) that could adversely affect the Tax liability referred to herein as of the Seller for any taxable period, then the Buyer shall notify the Seller of its receipt of such communication from the Governmental Authority within 10 days of receipt and provide the Seller with copies of all correspondence and other documents received from the Governmental Authority. The Buyer shall control any audit or other proceeding in respect of any Taxes or Tax Returns of the Company (a “Tax Contest”); provided, however, the Seller, at its sole cost and expense, shall (x) have the right to control (including the settlement or resolution thereof and the selection of counsel) any Tax Contest to the extent it relates to income Taxes for a Pre-Closing Tax Period; and (y) have the right to participate in any other Tax Contest described above (a “Covered Tax Contest”). Neither HNC nor JVOI shallThe Buyer shall not, and each of them shall cause its Affiliates not allow the Company to, settle, compromise and/or concede resolve, or abandon any portion of such Covered Tax Contest without the prior written consent of the other party, Seller (which consent shall not be unreasonably withheld withheld, delayed, or delayedconditioned).
(bii) HNC If the Seller elects to control an income Tax Contest for a Pre-Closing Tax Period as provided in Section 4.04(e)(i), (1) the Seller shall notify the Buyer of such intent, (2) the Buyer shall promptly complete and JVOI shall furnish or execute, and promptly cause the Company to be furnished to each othercomplete and execute, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and or other documents as are necessary and take other reasonable actions that the Seller requests to carry out allow the intent of this Section 9.1(b). Any information obtained under this Section 9.1(bSeller to control such Tax Contest, (3) shall be kept confidentialprior to the Seller taking control, 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.
(c) Each of HNC and JVOI Buyer shall, and shall cause its Affiliates the Company to: , control such Tax Contest diligently and in good faith and after the Seller takes control, the Seller shall control such Tax Contest in good faith and (i4) use its commercially reasonable efforts while it controls a Tax Contest, the Seller shall (A) keep the Buyer reasonably informed regarding the status of such Tax Contest, (B) allow the Buyer and the Company, at their expense, to properly retain participate in such Tax Contest and maintain (C) not settle, resolve, or abandon any such Tax Contest if such settlement, resolution, or abandonment would result in any Buyer Indemnified Party incurring any material Tax that the Tax and accounting records Seller is not obligated to pay or indemnify under this Agreement without the prior written consent of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods Buyer (which shall not be unreasonably withheld, delayed, or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and conditioned).
(iii) If the Seller elects to participate in a Tax Contest as provided in Section 4.04(e)(i), (1) the Seller shall notify the Buyer of such intent, (2) the Buyer shall control, or cause the Company to control, such Tax Contest diligently and in good faith, (3) the Buyer shall (and shall cause the Company to) promptly take all actions necessary to allow the other party Seller (and their respective agents its counsel) to fully participate in such Tax Contest and representatives(4) if requested by the Seller, at times and dates reasonably and mutually the Buyer shall settle (or cause the Company to settle) the Tax Contest on terms acceptable to the parties, Governmental Authority and the Seller (provided that such settlement will not result in a Buyer Indemnified Party incurring any material Tax that the Seller is not required to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained pay under this Section 9.1(cAgreement).
(iv) If the Seller does not control or participate in a Covered Tax Contest, (1) the Buyer shall be kept confidentialcause the Company to control such Tax Contest diligently and in good faith; (2) the Buyer shall keep the Seller reasonably informed regarding the status of such Tax Contest; and (3) if requested by the Seller, except as may be otherwise necessary the Buyer shall settle (or cause the Company to settle) the Tax Contest on terms acceptable to the applicable Governmental Authority and the Seller (provided that such settlement will not result in connection with any Buyer Indemnified Party incurring any material Taxes that the filing of Tax Returns or in the conduct of a Contest or other Tax proceedingSellers are not required to pay under this Agreement).
Appears in 1 contract
Tax Contests. (a) After The Purchaser and the Closing DateCompany, HNC on the one hand, and JVOI the Sellers and their respective Affiliates, on the other hand, shall jointly control the conduct, through counsel promptly notify each other upon receipt by such Party of their own choosing, written notice of any auditinquiries, claim for refundclaims, assessments, audits or administrative or judicial proceeding involving any asserted Tax liability or refund similar events with respect to Taxes (including French R&D Tax credits) or Tax Returns of the HNC Business or the Schnitzer Business Company Entities relating to a Pre-Closing Taxable Periods or Straddle Periods Tax Period (any such auditinquiry, claim for refundclaim, assessment, audit or proceeding relating to an asserted Tax liability referred to herein as similar event, a “Tax Contest”). Neither HNC nor JVOI shallAny failure to so notify the other Party of any Tax Contest shall not relieve such other Party of any liability with respect to such Tax Contest except to the extent such Party was actually prejudiced as a result thereof. The Purchaser shall control the conduct of any Tax Contest, including any settlement or compromise thereof; provided, however, that (i) the Company shall keep the Seller Representative reasonably informed of the progress of any Tax Contest on behalf of the Sellers, and each (ii) the Seller Representative shall be entitled to participate in any Tax Contest on behalf of them the Sellers at the Sellers’ sole cost and expense. The Purchaser shall cause its Affiliates not to, settle, settle or compromise and/or concede any portion of such Tax Contest for which the Sellers are liable under ARTICLE X (taking into account any applicable limitations set forth therein) without obtaining the prior written consent of the other partySeller Representative on behalf of the Sellers, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI The Purchaser shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing have sole control of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest all other inquiries, claims, assessments, audits or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) similar events with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Taxes or Tax Returns or in of the conduct of a Contest or other Tax proceedingCompany Entities.
(c) Each In the event of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain any conflict or overlap between the Tax and accounting records provisions of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 9.3 and Section 10.4, the provisions of this Section 9.3 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 proceedingcontrol.
Appears in 1 contract
Tax Contests. (a) After the Closing Date, HNC and JVOI The Sellers shall jointly control the conduct, through counsel of their own choosing, conduct of any audit, claim for refund, audit or other administrative or judicial proceeding involving any asserted Tax liability or refund with respect to Taxes relating to Prime, the HNC Business FDS Assets, the GE/Macy’s Assets, the May Assets or the Schnitzer Business (a “Tax Contest”) solely to the extent of any issues for which the Sellers have an indemnification obligation under this Agreement (other than with respect to a Straddle Period or a Tax Contest involving a consolidated, combined, affiliated or unitary Tax Return which includes the Purchaser or any Affiliate thereof (including Prime), which Tax Contest shall be conducted as provided in clauses (b)-(c) below), and the Purchaser shall control the conduct of all other Tax Contests with respect to any Tax Liability relating to Pre-Closing Taxable Periods Prime, the FDS Assets, the GE/Macy’s Assets, the May Assets or the Business; (b) in the case of any Tax Contest with respect to a Straddle Periods (any such auditPeriod, claim for refundthe controlling party shall be whichever of the Purchaser, on the one hand, or proceeding relating the Sellers, on the other hand, would bear the greater Tax Liability with respect to an asserted such Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallContest if the Governmental Authority was successful in such proceeding; provided, and each of them however, that neither party shall cause its Affiliates not to, settle, compromise and/or concede any portion of settle such Tax Contest without the prior written consent of the other party, which consent shall not be unreasonably withheld and (c) neither any Seller nor any Affiliate thereof shall be entitled to (i) review any consolidated, combined, affiliated or delayed.
(b) HNC and JVOI shall furnish unitary Tax Return which includes the Purchaser or cause to be furnished to each other, upon request, as promptly as practicable, such information any Affiliate thereof (including access to books and recordsPrime), or (ii) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of participate in any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any consolidated, combined, affiliated or unitary Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out Return which includes the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Purchaser or any portions of such records, Affiliate thereof (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingincluding Prime).
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Macy's, Inc.)
Tax Contests. (a) After The party obliged to provide indemnification under this Section 8.10 (the Closing Date, HNC "Tax Indemnitor") shall assume and JVOI shall jointly control direct the conduct, through counsel of their own choosing, defense or settlement of any audithearing, claim arbitration, suit or other proceeding (each a "Tax Contest") commenced, filed or otherwise initiated or convened to investigate or resolve the existence and extent of a liability with respect to which the Tax Indemnitor would have an indemnification obligation under this Section 8.10 ("Tax Indemnification Liability"). The party entitled to be indemnified under this Section 8.10 (the "Tax Indemnified Party") shall have the right to participate, as its own cost and expense, in the defense of such Tax Contest, it being understood that the Tax Indemnitor shall control such Tax Contest.
(b) The Tax Indemnitor shall pay all out-of-pocket expenses and other costs related to the Tax Indemnified Liability, including but not limited to fees for refundattorneys, accountants, expert witnesses or administrative other consultants retained by the Tax Indemnitor and/or Tax Indemnified Party (other than fees for attorneys, accountants, expert witnesses or judicial proceeding involving other consultants retained solely by the Tax Indemnified Party), and incurred at any asserted time during which the Tax Indemnitor is controlling and directing the Tax Contest in respect of which such fees are incurred. To the extent that any such expenses and other costs have been or are paid by a Tax Indemnified Party, the Tax Indemnitor shall promptly reimburse the Tax Indemnified Party therefor.
(c) closing agreement or other agreement with respect to any Tax liability or refund with respect to the HNC Business Business, the Assets or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest Transferred Subsidiaries without the prior written consent of the other party, which Tax Indemnified Party (such consent shall not to be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish or cause to be furnished to each otherif such settlement, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest closing agreement or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain agreement will adversely affect Taxes payable by the Tax and accounting records of Indemnified Party for taxable periods or portions thereof beginning after the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingDate.
Appears in 1 contract
Tax Contests. (a) After If any taxing authority asserts or proposes a Tax Claim in respect of either Company, then the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion Party hereto first receiving notice of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish or cause to be furnished to each other, upon request, as Tax Claim promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall will provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records thereof to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateParty hereto; provided, however, that the failure of such Party to give such prompt notice will not relieve the other Party of any of its obligations under this Article V, except to the extent that the other Party is materially prejudiced thereby. Such notice will specify in all casesreasonable detail the basis for such Tax Claim to the extent the Party giving such notice is aware of such basis and will include a copy of the relevant portion of any correspondence received from the taxing authority.
(b) Subject to Section 5.5(d), the Sellers will have the right to control, at their own expense, any audit, examination, contest, litigation or other proceeding by or against any taxing authority (a “Tax Proceeding”) in respect of each Company that solely involves Excluded Taxes; provided, however, that (i) Purchaser will be entitled to participate in such Tax Proceeding and receive copies of any written materials relating to such Tax Proceeding received from the relevant taxing authority, and (ii) the Sellers will not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Purchaser, which consent will not be unreasonably withheld, conditioned or delayed.
(c) In the case of a Tax Proceeding for a Straddle Period of either Company, the Controlling Party will have the right to control, at its own expense, such activities are Tax Proceeding; provided, however, that (i) the Non-Controlling Party will be entitled to participate in such Tax Proceeding, at its own expense, if such Tax Proceeding could have an adverse impact on the Non-Controlling Party or any of its Affiliates and (ii) the Controlling Party will not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent, which consent will not be conducted during normal business hours. Any information obtained under unreasonably withheld, conditioned or delayed, of the Non-Controlling Party.
(d) Purchaser will have the right to control (i) any Tax Proceeding involving either Company (other than a Tax Proceeding described in clauses (b) and (c) of this Section 9.1(c5.5), and (ii) shall be kept confidentialnotwithstanding any provision in this Agreement to the contrary, except as may be otherwise necessary in connection with all Tax Proceedings relating to a consolidated, unified, or combined group that includes a Company on the filing one hand and Purchaser or any of its other Affiliates on the other hand if such Tax Returns Proceeding involves issues or in matters that do not relate solely to Excluded Taxes.
(e) The Controlling Party will indemnify and hold the conduct of Non-Controlling Party, its Affiliates and their respective officers, directors, employees and agents, harmless from any Taxes (and any related costs imposed by a Contest court or other Tax proceedingtribunal) arising out of or resulting from the Controlling Party’s failure to comply with its obligations under clauses (b) or (c) of this Section 5.5, as the case may be.
Appears in 1 contract
Tax Contests. (ai) After If any taxing authority proposes any adjustment which could, if pursued successfully, give rise to a claim for indemnification against the Closing DateSeller by the Buyer under Section 5.5(a)(i) (a "Seller Tax Claim"), HNC a claim for indemnification against the Buyer by the Seller under Section 5.5(a)(ii) (a "Buyer Tax Claim"), or both a Seller Tax Claim and JVOI a Buyer Tax Claim (a "Joint Tax Claim"), then the party hereto first receiving notice of such proposed adjustment (a "Tax Dispute") shall jointly promptly notify the other party hereto in writing of such Tax Dispute.
(ii) In the case of a Buyer Tax Claim, the Buyer shall have the right, at its sole cost and expense, to control the conductdefense, through counsel prosecution, settlement or compromise of their own choosingthe Tax Dispute underlying such Buyer Tax Claim; provided, of any audithowever, claim for refundthat the Buyer will not, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the Seller's prior written consent of the other party, (which consent shall not be unreasonably withheld or delayed), enter into any settlement or compromise of such Tax Dispute.
(biii) HNC In the case of a Seller Tax Claim, the Seller shall have the right, at its sole cost and JVOI shall furnish or cause expense, to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating to control the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparationdefense, prosecution, defense settlement or conduct compromise of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of Dispute underlying such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateSeller Tax Claim; provided, however, that the Seller will not, without the Buyer's prior written consent (which consent shall not be unreasonably withheld or delayed), enter into any settlement or compromise of such Tax Dispute.
(iv) In the case of a Joint Tax Claim, the Buyer and the Seller shall first attempt to separate such Joint Tax Claim into two, one involving the Buyer Tax Claim portion thereof (which shall be subject to the provisions of Section 5.5(d)(iii)) and the other involving the Seller Tax Claim portion thereof (which shall be subject to the provisions of Section 5.5(d)(iii)). If the Buyer and the Seller are not successful in accomplishing such separation, the Buyer and the Seller shall consult and cooperate in good faith with each other in controlling such audit, examination, investigation, or administrative, court or other proceeding, shall not compromise or settle such Joint Tax Claim without the other's prior written consent (which consent shall not be unreasonably withheld or delayed), and shall share the costs and expenses associated with such Joint Tax Claim on such equitable basis as the parties shall mutually agree. If the Buyer and the Seller cannot agree with respect to any matter involving any Joint Tax Claim, the Buyer and the Seller shall jointly engage independent tax counsel that is mutually acceptable to the Buyer and the Seller to make its decision with respect to such matter, which decision shall be final and binding on the Buyer and the Seller. The Buyer shall bear and pay one-half of the fees and other costs charged by such counsel and the Seller shall bear and pay one-half of the fees and other costs charged by such counsel.
(v) The party hereto that controls the Tax Dispute under the provisions of Section 5.5(d)(ii), 5.5(d)(iii) or 5.5(d)(iv) shall keep the other party hereto informed of all casesevents and developments relating to such Tax Dispute, and the other party hereto, or its authorized representatives, shall be entitled, at its own expense, to attend (but not control) all conferences, meetings and proceedings relating to such activities are Tax Dispute.
(vi) Failure to be conducted during normal business hours. Any information obtained notify a party hereto of a Tax Dispute shall not relieve such party of any liability which it may have under this Section 9.1(c) shall be kept confidential5.5 except and only to the extent of any damages, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceedingincluding without limitation any material prejudice to such party's right to contest any claim giving rise to indemnity herein, to such party caused by such failure.
Appears in 1 contract
Tax Contests. (ai) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel If any Governmental Authority asserts or initiates an Action in respect of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund Taxes with respect to the HNC Business or the Schnitzer Business relating to a Pre-Closing Taxable Periods or Tax Period (including any Straddle Periods Period) against any Acquired Entity (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”) after the Closing, then the Party first receiving notice of such Tax Contest promptly shall provide written notice thereof to the other Parties to this Agreement; provided, that the failure of such Party to give such prompt notice shall not relieve the other Party of any of its obligations under Section 5.4(c)(ii) or (iii) below, except to the extent that the other Party is prejudiced by such failure (as determined by a court of competent jurisdiction). Neither HNC nor JVOI shallSuch written notice shall specify in reasonable detail the basis for such Tax Contest and shall be accompanied by a copy of the relevant portion of any notice or other correspondence received from the Governmental Authority with respect to such Tax Contest.
(ii) Seller Parent, at its expense, shall have the right to control the conduct of any Tax Contest that relates to a Pre-Closing Tax Period that could adversely impact Seller Parent or any of its Affiliates or increase such Person’s liability for Taxes or otherwise; provided, that subject to Section 5.4(c)(ii), (A) Buyer shall have the right to participate, at its sole cost and expense, in such Tax Contest, (B) Seller Parent shall keep Buyer reasonably apprised of the status of such Tax Contest, (C) Seller Parent shall provide to Buyer copies of all material correspondence received from the applicable Governmental Authority in connection with such Tax Contest, and each of them (D) Seller Parent shall cause its Affiliates not to, settle, compromise and/or concede any portion of or abandon such Tax Contest without the prior written consent of the other party, Buyer (which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned), if such settlement of such Tax Contest could reasonably be expected to materially and adversely affect the Tax liabilities of Buyer.
(biii) HNC and JVOI Subject to Section 5.4(c)(ii), Buyer, at its expense, shall furnish or cause have the right 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in control the conduct of any Tax Contest or other proceeding involving or otherwise relating not controlled by Seller Parent; provided, that (A) Seller Parent shall have the right to participate, at its sole cost and expense, in such Tax Contest, (B) Buyer shall keep Seller Parent reasonably apprised of the HNC Business or status of such Tax Contest, (C) Buyer shall provide to Seller Parent copies of all material correspondence received from the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary applicable Governmental Authority in connection with such Tax Contest, and (D) Buyer shall not settle, compromise or abandon such Tax Contest without the filing prior written consent of Seller Parent (which consent shall not be unreasonably withheld, delayed or conditioned) if such settlement of such Tax Returns Contest could reasonably be expected to materially and adversely affect the Tax liabilities of Seller Parent or in the conduct any of a Contest or other Tax proceedingits Affiliates.
(civ) Each The provisions of HNC and JVOI shall, and shall cause its Affiliates to: Section 5.4(d) (i) use its commercially reasonable efforts insofar as it relates to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(cContests) shall be kept confidential, except as may be otherwise necessary in connection with the filing of apply to Tax Returns or in the conduct of a Contest or other Tax proceedingContests.
Appears in 1 contract
Tax Contests. (ai) After If any Governmental Entity issues to the Closing DateBlocker, HNC and JVOI shall jointly control the conduct, through counsel Company or any Subsidiary of their own choosing, the Company (A) a notice of any audit, claim for refund, its intent to audit or administrative or judicial proceeding involving any asserted Tax liability or refund conduct another legal Proceeding with respect to the HNC Business Taxes or the Schnitzer Business relating to Tax Returns of such Person for any Pre-Closing Taxable Periods Tax Period or Straddle Periods Period or (B) a notice of deficiency for Taxes for any such auditPre-Closing Tax Period or Straddle Period, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and in each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (case including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods Tax Refund (or Straddle Periods and a subsequent challenge thereto), Buyer shall provide notify the other party with written notice prior to any destruction, abandonment or disposition Representative of all or any portions its receipt of such records, communication from the Governmental Entity within ten (ii10) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatedays of receipt; provided, however, that Buyer’s failure to so notify the Representative shall not limit any of the indemnification obligations of the Unitholders under Section 13A (except to the extent such failure materially prejudices the defense of such matter). The Company shall control any audit or other legal Proceeding in all casesrespect of any Taxes or Tax Returns of the Blocker, the Company or a Subsidiary of the Company (a “Tax Contest”); provided, however, (x) the Representative, at the Unitholders sole cost and expense, shall have the right to control any Tax Contest (including the settlement or resolution thereof) to the extent it relates solely to a Pre-Closing Tax Period (excluding any Straddle Period); (y) the Representative, at the Unitholders’ sole cost and expense, shall have the right to participate in any Tax Contest it does not control to the extent it relates to a Pre-Closing Tax Period or Straddle Period; and (z) Buyer shall not, and shall not allow the Blocker, the Company or any Subsidiary of the Company, to settle, resolve, or abandon a Tax Contest (whether or not the Representative controls or participates in such activities are Tax Contest) for a Pre-Closing Tax Period or Straddle Period without the prior written consent of the Representative (such consent not to be conducted during normal business hoursunreasonably withheld, delayed, or conditioned).
(ii) If the Representative elects to control a Tax Contest for a Pre-Closing Tax Period, the Representative shall notify Buyer of such intent within ten (10) days of receiving notice of the Tax Contest. Any information obtained under this Section 9.1(cWhile it controls a Tax Contest, the Representative shall (A) control such Tax Contest in good faith; (B) keep Buyer reasonably informed regarding the status of such Tax Contest; (C) allow Buyer, the Blocker, the Company, or any Subsidiary of the Company, at Buyer’s sole cost and expense, to participate in such Tax Contest; and (d) not settle, resolve, or abandon any such Tax Contest without the prior written consent of Buyer (which shall not be kept confidentialunreasonably withheld, except as may be otherwise necessary in connection with the filing of Tax Returns delayed, or in the conduct of a Contest or other Tax proceedingconditioned).
Appears in 1 contract
Sources: Purchase Agreement and Agreement and Plan of Merger (Evolent Health, Inc.)
Tax Contests. AMH shall promptly notify ARC in writing upon receipt by any of the Subject Companies, or by AMH or any of its Affiliates, of notice of any Tax audits, examinations or assessments that could give rise to a liability for which ARC is responsible under Section 8.1 of this Agreement, provided that AMH’s failure so to notify ARC shall not limit AMH’s rights under this Article VIII except to the extent ARC is materially prejudiced by such failure. ARC shall promptly notify AMH in writing upon receipt by ARC or any of its Affiliates of notice of any Tax audits, examinations or assessments that could give rise to Taxes of or with respect to any of the Subject Companies. Except as otherwise provided herein, (a) After the Closing Date, HNC and JVOI ARC shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, examination or proceeding that relates exclusively to a Pre-Closing Tax Period and (b) AMH shall control any Tax audit, examination or proceeding that is not described in clause (a). In either case, the party controlling such Tax audit, examination or proceeding shall (w) notify the other party of significant developments with respect to such Tax audit, examination or proceeding and keep the other party reasonably informed and consult with the other party as to the resolution of any issue that would materially affect such other party, (x) give to the other party a copy of any Tax adjustment proposed in writing with respect to such Tax audit, examination or proceeding and copies of any other written correspondence with the relevant taxing authority relating to an asserted such Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallaudit, and each of them shall cause its Affiliates examination or proceeding, (y) not to, settle, settle or compromise and/or concede any portion of such Contest issue without the consent of the such other party, which consent shall not be unreasonably withheld or delayed.
and (bz) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide permit the other party with written notice prior to any destruction, abandonment or disposition of participate in all or any portions aspects of such recordsTax audit, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment examination or disposition and (iii) allow the other party and their respective agents and representativesproceeding, at times and dates reasonably and mutually acceptable to the parties, to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingparty’s own expense.
Appears in 1 contract
Sources: Transaction Agreement (Apollo Global Management LLC)
Tax Contests. (a) After If any Taxing Authority asserts a Tax Claim, then the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect Party to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion this Agreement first receiving notice of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish or cause to be furnished to each other, upon request, as Tax Claim promptly as practicable, such information (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall will provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records thereof to the other party upon its written request prior Parties to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatethis Agreement; provided, however, that the failure of such Party to give such prompt notice will not relieve the other Parties of any of their obligations under this ARTICLE XI, except to the extent that the other Parties are actually prejudiced by such delay. Such notice will specify in all casesreasonable detail the basis for such Tax Claim and will include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(b) Seller will have the right to control, at its own expense, any audit, examination, contest, litigation or other proceeding by or against any Taxing Authority (a “Tax Proceeding”) in respect of the Business for any taxable period that ends on or before the Closing Date.
(c) In the case of a Tax Proceeding for a Straddle Period of the Business, the Controlling Party will have the right to control, at its own expense, such activities are Tax Proceeding; provided, however, that (i) the Non-Controlling Party will be entitled to participate in such Tax Proceeding, at its own expense, if such Tax Proceeding could have an adverse impact on the Non-Controlling Party or any of its Affiliates and (ii) the Controlling Party will not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent, which consent will not be conducted during normal business hours. Any information obtained unreasonably withheld, conditioned or delayed, of the Non-Controlling Party.
(d) The Controlling Party will indemnify and hold the Non-Controlling Party, its Affiliates and their respective officers, directors, employees and agents, harmless from any Taxes (and any related costs imposed by a court or other tribunal) arising out of or resulting from the Controlling Party’s failure to comply with its obligations under clauses (b) or (c) of this Section 9.1(c) shall be kept confidential, except 11.4 as the case may be otherwise necessary in connection with the filing of Tax Returns or in the conduct of a Contest or other Tax proceedingbe.
Appears in 1 contract
Tax Contests. (ai) After Parent, the Closing DateSurviving Corporation and its Subsidiaries, HNC on the one hand, and JVOI the Company Stockholders, the Stockholder Representative and their Affiliates, on the other hand, shall jointly control the conduct, through counsel promptly notify each other upon receipt by such party of their own choosing, written notice of any auditinquiries, claim for refundclaims, assessments, audits or administrative or judicial proceeding involving any asserted Tax liability or refund similar events with respect to the HNC Business or the Schnitzer Business Taxes relating to a Pre-Closing Taxable Periods or Straddle Periods Tax Period (any such auditinquiry, claim for refundclaim, assessment, audit or proceeding relating to an asserted Tax liability referred to herein as similar event, a “ContestTax Matter”). Neither HNC nor JVOI shallAny failure to so notify the other party of any Tax Matter shall not relieve such other party of any liability with respect to such Tax Matters except to the extent such party was actually prejudiced as a result thereof.
(ii) Parent shall have sole control of the conduct of all Tax Matters, including any settlement or compromise thereof, provided, however, that Parent shall keep the Stockholder Representative reasonably informed of the progress of any Tax Matter and each of them shall cause its Affiliates not to, settle, effect any such settlement or compromise and/or concede any portion with respect to which the Company Stockholders may be required to fund additional amounts in respect of such Contest Tax Matters (including by way of distribution from the Escrowed Fund) without obtaining the consent of the other partyStockholder Representative’s written consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(biii) HNC and JVOI shall 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 In the HNC Business and the Schnitzer Business as is reasonably requested for the filing event of any Tax Returns and conflict or overlap between the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent provisions of this Section 9.1(b6.12(b). Any information obtained under , Section 9.3 (third party claims) and Section 9.5 (limitations of liability), the provisions of this Section 9.1(b6.12(b) 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 proceedingcontrol.
(civ) Each of HNC and JVOI shallExcept as otherwise provided in this Section 6.12(b), Parent shall have the sole right to control any audit or examination by any Taxation Authority, initiate any claim for refund or amend any Tax Return, and shall cause its Affiliates contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of, or relating to: (i) use its commercially reasonable efforts to properly retain and maintain , the Tax and accounting records income, assets or operations of the HNC Business Company and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of its Subsidiaries for all or any portions of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingtaxable periods.
Appears in 1 contract
Sources: Merger Agreement (Teradyne, Inc)
Tax Contests. (a) After If any Taxing Authority asserts a Tax Claim, then the Closing Date, HNC and JVOI party to this Agreement first receiving notice of such Tax Claim promptly shall jointly control provide written notice thereof to the conduct, through counsel other party or parties to this Agreement; provided that the failure of their own choosing, such party to give such prompt notice shall not relieve the other party of any auditof its obligations under this Article VI, claim except to the extent that the other party is materially prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority. 1414958.12A-NYCSR03A - MSW
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Business Transferred Ag Subsidiaries for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 6.5(d)), Descartes shall have the exclusive right to Pre-Closing Taxable Periods or Straddle Periods (any control such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them Proceeding; provided that Descartes shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyFermat, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC , if such settlement, compromise, or abandonment could have a material adverse impact on Fermat or any of its Affiliates. If Descartes elects not to control the conduct and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing resolution of any Tax Returns Proceeding that Descartes has the right to control pursuant to this Section 6.5(b), Descartes shall notify Fermat in writing, and Fermat shall have the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in right to control the conduct and resolution of any Contest such Tax Proceeding, or other proceeding involving portion thereof, that is not controlled by Descartes; provided that, (x) the costs and expenses, including reasonable legal and accounting fees, incurred by Fermat in controlling such Tax Proceeding, or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) portion thereof, shall be kept confidentialborne by Descartes and (y) Fermat shall not settle, except as may compromise or abandon any such Tax Proceeding without the prior written consent of Descartes, which consent shall not be otherwise necessary in connection with the filing unreasonably withheld, conditioned or delayed, if such settlement, compromise, or abandonment could have a material adverse impact on Descartes or any of Tax Returns or in the conduct of a Contest or other Tax proceedingits Subsidiaries.
(c) Each In the case of HNC a Tax Proceeding of or with respect to any of the Transferred Ag Subsidiaries for any Straddle Period (other than a Tax Proceeding described in Section 6.5(d)), the Controlling Party shall have the right and JVOI shallobligation to conduct, and shall cause at its Affiliates to: own expense, such Tax Proceeding; provided that (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and Controlling Party shall provide the other party Non-Controlling Party with written notice prior to any destruction, abandonment or disposition a timely and reasonably detailed account of all or any portions each stage of such recordsTax Proceeding, (ii) transfer the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such records to the other party upon its written request prior to any such destructionTax Proceeding, abandonment or disposition and (iii) allow the other Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and their respective agents attend any meetings or conferences with the relevant Taxing Authority, and representatives(vi) the Controlling Party shall not settle, at times and dates reasonably and mutually acceptable to compromise or abandon any such Tax Proceeding without obtaining the partiesprior written consent of the Non-Controlling Party, to from time to time inspect and review such records as such other party may deem necessary which consent shall not be unreasonably withheld, conditioned or appropriatedelayed; provided, howeverfurther, that in all casesthe Controlling Party shall not have any obligations (and the Non-Controlling Party shall not have any rights) under clause (i), (ii), (iii) or (v) above with respect to any portion of such activities Tax Proceeding (and any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of its Affiliates. For purposes of this Agreement, “Controlling Party” shall mean Descartes if Descartes and its Subsidiaries are reasonably expected to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary bear the greater Tax liability in connection with the filing of such Tax Returns Proceeding, or in the conduct of a Contest or other Tax proceeding.Fermat if Fermat and its Affiliates are reasonably expected 1414958.12A-NYCSR03A - MSW
Appears in 1 contract
Tax Contests. (ai) After If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or judicial proceeding, suit, dispute or other claim (a "Tax Claim") shall be delivered, sent, commenced or initiated, in writing, to or against any party, any of its Affiliates or any Purchased Entity (a "Notified Party") by any Governmental Authority with respect to Taxes for which the Closing Dateother party would be liable pursuant to Section 5.03(a), HNC the Notified Party shall, if informed thereof promptly, notify the other party in writing of such Tax Claim; provided, however, that the failure of any party to give the other party prompt notice as provided herein shall not relieve the other party of its obligations under this Section 5.03 except to the extent that the other party is prejudiced thereby.
(ii) Subject to the remainder of this Section 5.03(c)(ii), the Selling Entities shall have the sole right to represent the Purchased Entities' interests in any Tax Claim for which the Selling Entities have an indemnification obligation hereunder (or in respect of TCFL and JVOI shall jointly control any U.K. Subsidiary, a liability to pay under the conductcovenant in Section 5.03(a)(viii)), through and to employ counsel of their own choosingchoice at their expense; provided, however, that the Selling Entities shall keep the Purchaser reasonably informed with respect to any issue relating to such Tax Claim. The Purchaser may also participate in the defense of such Tax Claim at its expense. In the event that issues relating to a potential adjustment for which the Selling Entities (or any auditAffiliate) have liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser (or any Affiliate) could be liable, claim for refundthe Purchaser shall have the right, or administrative or judicial proceeding involving any asserted at its expense, to control such Tax liability or refund Contest but only with respect to the HNC Business or the Schnitzer Business latter issues. With respect to an issue relating to a potential adjustment for which both the Selling Entities (or any Affiliate) and the Purchaser (or any Affiliate) could be liable or could be adversely affected, (A) each party may participate in the Tax Contest and the controlling party shall consult with the non-controlling party and consider in good faith and reasonably accommodate any comments or concerns of the non-controlling party, and (B) with respect to such issue, the Tax Contest relating thereto shall be controlled by the Purchaser; provided, however, in the case of a Tax Contest with respect to a Pre-Closing Taxable Periods or Straddle Periods (any such auditPeriod, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each that party which would bear the burden of them shall cause its Affiliates not to, settle, compromise and/or concede any the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods shall control. Except as otherwise provided, the principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Section 5.03 by the Selling Entities and the Purchaser.
(iii) Neither the Selling Entities, the Purchased Entities, the Purchaser nor any Affiliate thereof shall enter into any compromise or agree to settle any Tax Claim that could adversely affect (including, without limitation, by reason of the payment of any Tax) the other party for such Contest year or a subsequent year (and in respect of TCFL or any U.K. Subsidiary, a prior year) without the prior written consent of the other party, which consent shall may not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Transamerica Finance Corp)
Tax Contests. (a) After Subject to sections (b) and (c) of this Section 6.7, the Closing Date, HNC and JVOI applicable Company shall jointly control the conduct, through counsel of their own choosing, any audit or other Proceeding in respect of any auditTax Return or Taxes of any Company (each, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest without the consent of the other party, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall furnish or cause If a Tax Contest relates to be furnished to each other, upon request, as promptly as practicable, such information an IRS Form 1065 of the Company (including access to books and records) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving similar state or local pass-through return) for a Pre-Closing Tax Period and could give rise to an Indemnified Tax (a “Representative Tax Contest”), then the Representative shall control such Representative Tax Contest; provided however, (a) the Representative shall keep Parent reasonably informed regarding the status of such Representative Tax Contest; (b) Parent, at the its sole cost and expense, shall have the right to participate in any Representative Tax Contest; and (c) the Representative shall not settle or otherwise relating to resolve such Representative Tax Contest without the HNC Business prior consent of Parent (which will not be unreasonably withheld, delayed, or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(bconditioned). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: If a Tax Contest (iother than a Representative Tax Contest) use its commercially reasonable efforts relates to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to a Pre-Closing Taxable Periods or Straddle Periods Tax Period and could give rise to an Indemnified Tax (a “Pre-Closing Tax Contest”), then Parent shall provide control such Pre-Closing Tax Contest; provided however, (a) the other party with written notice prior to any destruction, abandonment or disposition of all or any portions Parent shall keep the Representative reasonably informed regarding the status of such recordsPre-Closing Tax Contest; (b) the Representative, (ii) transfer such records at the Members’ sole cost and expense, shall have the right to the other party upon its written request prior to participate in any such destruction, abandonment or disposition Pre-Closing Tax Contest; and (iiic) allow Parent shall not settle or otherwise resolve such Pre-Closing Tax Contest without the other party and their respective agents and representativesprior consent of the Representative (which will not be unreasonably withheld, at times and dates reasonably and mutually acceptable to the partiesdelayed, to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingconditioned).
Appears in 1 contract
Sources: Merger Agreement (Ducommun Inc /De/)
Tax Contests. (a) After If any Tax Authority asserts a Tax Claim, then the Closing DateParty to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other Party or Parties to this Agreement; provided, HNC and JVOI however, that the failure of such Party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other Party of any auditof its obligations under this Article VII, claim except to the extent that the other Party is actually prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Tax Authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any member of the HNC Business Alkali Group for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 7.6(c)), Seller shall have the exclusive right and obligation to Pre-Closing Taxable Periods or Straddle Periods (any conduct, at its own expense, such auditTax Proceeding; provided, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them that Seller shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyPurchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall furnish , if such settlement, compromise 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 HNC Business and the Schnitzer Business as abandonment could have an adverse effect that is reasonably requested material on Purchaser or any of its Affiliates for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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 proceedingPost-Closing Period.
(c) Each In the case of HNC a Tax Proceeding of or with respect to any member of the Alkali Group for any Straddle Period, the Controlling Party shall have the right and JVOI shallobligation to conduct, and shall cause at its Affiliates to: own expense, such Tax Proceeding; provided that (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and Controlling Party shall provide the other party Non-Controlling Party with written notice prior to any destruction, abandonment or disposition a timely and reasonably detailed account of all or any portions each stage of such recordsTax Proceeding, (ii) transfer the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such records to the other party upon its written request prior to any such destructionTax Proceeding, abandonment or disposition and (iii) allow the other party Controlling Party shall consult with the Non-Controlling Party and their respective agents and representatives, at times and dates reasonably and mutually acceptable offer the Non-Controlling Party an opportunity to the parties, to from time to time inspect and review such records as such other party may deem necessary comment before submitting any written materials prepared or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary furnished in connection with such Tax Proceeding, (iv) the filing Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and attend any meetings or conferences with the relevant Tax Authority, and (vi) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed. For purposes of this Agreement, “Controlling Party” shall mean Purchaser if Purchaser and its Affiliates are reasonably expected to bear the greater Tax Returns liability in connection with such Tax Proceeding or Seller if Seller and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Tax Proceeding; and “Non-Controlling Party” means whichever of Seller or Purchaser is not the conduct of a Contest or other Controlling Party with respect to such Tax proceedingProceeding.
Appears in 1 contract
Tax Contests. (a) After the Closing Date, HNC and JVOI Buyer shall jointly control the conduct, through counsel of their own choosing, promptly notify Seller of any auditnotice of any pending or threatened Tax Contest relating to the Transferred Assets, claim for refundthe Assumed Liabilities, or administrative or judicial proceeding involving any asserted Tax liability or refund and the Business with respect to the HNC Business or the Schnitzer Business relating to Taxes for which Seller would be liable for any Pre-Closing Taxable Periods or Straddle Periods Tax Period (any such audit, claim for refund, or proceeding relating to an asserted “Applicable Tax liability referred to herein as a “Contest”); provided, however, that no failure or delay by Buyer to provide notice of an Applicable Tax Contest shall reduce or otherwise affect the indemnification obligations of Seller hereunder except to the extent the defense of such Applicable Tax Contest is prejudiced thereby.
(b) Subject to Section 9.8(c), Seller shall have the exclusive right to control the conduct and settlement of all Applicable Tax Contests relating to Taxes for which Seller could be solely liable under Section 9.1 if a claim for such Taxes were made. Each party that controls the conduct of an Applicable Tax Contest pursuant to this Section 9.8(b) shall keep the other party informed of the status of, and any developments in, such Applicable Tax Contest. Neither HNC nor JVOI shall, and each party shall enter into (or agree to enter into) any compromise or settlement of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Applicable Tax Contest without the prior written consent of the such other party, party (which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each Buyer and Seller shall have the right to control jointly the conduct and settlement of HNC any Applicable Tax Contest with respect to a Straddle Period relating to Taxes for which both Buyer and JVOI shallSeller could be liable under Section 9.1 if a claim for such Taxes were made; provided that (i) the parties shall cooperate, and shall cause its their respective Affiliates to: (i) use its commercially reasonable efforts to properly retain cooperate, in the conduct or settlement of any such Applicable Tax Contest and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (ii) transfer such records neither party shall enter into (or agree to the other party upon its written request prior to enter into) any compromise or settlement of any such destruction, abandonment or disposition and (iii) allow Applicable Tax Contest without the other party and their respective 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 prior written consent of such other party may deem necessary (which consent shall not be unreasonably withheld, conditioned or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingdelayed).
Appears in 1 contract
Sources: Asset Purchase Agreement (Ashland Global Holdings Inc)
Tax Contests. (a) After Purchaser, on the one hand, and Seller, on the other hand (each, the “Recipient”), shall notify Seller or Purchaser, as the case may be, in writing within 30 days of receipt by the Recipient of written notice of any Tax Contest which may affect the liability for Taxes of such other party under this Agreement.
(b) If the Tax Contest relates to any taxable period ending on or before the Closing Date, HNC and JVOI shall jointly Seller shall, at its expense, control the conductdefense and settlement of such Tax Contest; provided that (i) Seller’s entitlement to control such Tax Contest shall be subject to Seller first acknowledging in writing its unconditional obligation to indemnify, through counsel of their own choosingdefend, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund and hold harmless the Purchaser Indemnified Parties from and against all Taxes ultimately determined to be payable with respect to such Tax Contest, and (ii) Seller may decline to participate in such Tax Contest, in which case Purchaser shall control the HNC Business defense and settlement of the Tax Contest.
(c) If the Tax Contest relates to any Straddle Period, Purchaser and Seller shall together, at its respective expense, control the defense and settlement of such Tax Contest.
(d) The Party in control of the defense or the Schnitzer Business relating settlement of any Tax Contest that relates to any Pre-Closing Taxable Periods Period (or portion thereof) or Straddle Periods (Period shall keep the other Party informed of the progress of such Tax Contest, provide copies of all relevant correspondence and other Tax Contest documents to the other Party, and allow them to participate at their own expense. The Party in control of the defense or settlement of any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates Contest may not to, settle, compromise and/or concede settle such Tax Contest in any portion manner which would adversely affect the other Party without the written consent of such Contest without the consent of the other party, Party (which consent shall not be unreasonably withheld or delayed.
(b) HNC delayed and JVOI shall furnish or cause in any event be deemed 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 HNC given if no response is received within seven Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct Days of a Contest or other Tax proceedingParty’s request).
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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.
Appears in 1 contract
Sources: Asset and Stock Purchase and Sale Agreement (Kraton Corp)
Tax Contests. If any Taxing Authority asserts a claim with respect to Taxes that, if pursued successfully, would reasonably be expected to serve as the basis for a claim for indemnification under Article X (a “Tax Claim”), then the Party first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other Party. Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(a) After In the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel case of their own choosing, a Tax Proceeding of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Business Purchased Entities or their respective Subsidiaries for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 7.4(c)), Seller shall have the exclusive right to Precontrol such Tax Proceeding; provided, however, that Seller shall not settle or compromise any such Tax Proceeding without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), if such settlement or compromise could have a material adverse impact on Purchaser or any of its Affiliates for any Post-Closing Taxable Periods Tax Period.
(b) In the case of a Tax Proceeding of or with respect to any of the Purchased Entities or their respective Subsidiaries for any Straddle Periods Period (other than a Tax Proceeding described in Section 7.4(c)), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided, however, that (i) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such auditTax Proceeding, claim for refund(iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and attend any meetings or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, conferences with the relevant Taxing Authority and each of them (vi) the Controlling Party shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyNon-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
; provided, further, however, that the Controlling Party shall not have any obligations (b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of Non-Controlling Party shall not have any Tax Returns and the preparationrights) under clause (i), prosecution(ii), defense (iii) or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assetsv) above with respect to any portion of such Tax Proceeding (and each party shall execute and deliver such powers any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of attorney and other documents as are necessary to carry out the intent its Affiliates. For purposes of this Section 9.1(b). Any information obtained under this Section 9.1(b) Agreement, “Controlling Party” shall be kept confidential, except as may be otherwise necessary mean Seller if Seller and its Affiliates are reasonably expected to bear the greater Tax liability in connection with the filing of such Tax Returns Proceeding, or in the conduct of a Contest or other Tax proceeding.
(c) Each of HNC Purchaser if Purchaser and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts are reasonably expected to properly retain and maintain bear the greater Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary liability in connection with such Tax Proceeding; and “Non-Controlling Party” means whichever of Seller or Purchaser is not the filing of Controlling Party with respect to such Tax Returns or in the conduct of a Contest or other Tax proceedingProceeding.
Appears in 1 contract
Tax Contests. (a) After In the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, event of any audit, claim for refund, Tax Contest relating to (i) any Pass-Through Tax Return or administrative or judicial proceeding involving (ii) any asserted other Tax liability or refund Return with respect to the HNC Business or the Schnitzer Business relating to any Pre-Closing Taxable Periods Tax Period if the Final Base Purchase Price has not been finalized, and, solely with respect to clause (i), such Acquired Entity has a Section 6226 election in effect (or Straddle Periods (deemed to be in effect), the Company shall provide written notice of such Tax Contest to the Representatives as soon as reasonably practicable. The Representatives shall have the right to control, at the expense of the Existing Equityholders, any such auditTax Contest; provided, claim for refundthat (A) the Representatives will provide the Company with written notice of its election to control such Tax Contest no later than fifteen (15) days after receiving written notice of such Tax Contest from the Company pursuant to the preceding sentence, or proceeding (B) the Representatives will control such Tax Contest diligently and in good faith and permit the Company to reasonably participate, at its own cost and expense, in such Tax Contest, (C) with respect to any such Tax Contest relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallclause (ii) above, and each of them shall cause its Affiliates the Representatives will not to, settle, compromise and/or concede any portion of or abandon such Tax Contest without the prior written consent of the other party, Purchaser (which consent shall not be unreasonably withheld withheld, delayed or delayed.
conditioned), and (b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assetsD) with respect to any such Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary Contest relating to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: clause (i) use its commercially reasonable efforts to properly retain and maintain above, the Representatives will not settle, compromise or abandon such Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with Contest without (x) providing prior 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 its written request prior to any such destruction, abandonment or disposition Purchaser and (iiiy) allow solely if such settlement would reasonably be expected to adversely impact Purchaser or its Affiliates, the other party and their respective agents and representativesconsent of Purchaser (which consent shall not be unreasonably withheld, at times and dates reasonably and mutually acceptable to the parties, to from time to time inspect and review such records as such other party may deem necessary delayed or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingconditioned).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Franklin BSP Realty Trust, Inc.)
Tax Contests. (a) After If any Governmental Entity asserts a Tax Claim, then the Closing Dateparty to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties to this Agreement; provided, HNC and JVOI however, that the failure of such party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other party of any auditof its obligations under this Article 7, claim except to the extent that the other party is prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Governmental Entity.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to any of the HNC Business Transferred Entities for any taxable period ending on or before the Schnitzer Business relating Closing Date (other than a Tax Proceeding described in Section 7.07(d)), Parent shall have the exclusive right to Pre-Closing Taxable Periods control such Tax Proceeding; provided, however, that (x) if the resolution of such Tax Proceeding could reasonably be expected to have a material adverse impact on Purchaser or Straddle Periods any of its Affiliates (including any such auditTransferred Entity after the Closing), claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallParent shall keep Purchaser apprised of material developments with respect to, and each of them promptly shall cause its Affiliates not respond to any reasonable requests from Purchaser for information relating to, such Tax Proceeding, and (y) Parent shall not settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyPurchaser, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall furnish , if such settlement, compromise or cause to be furnished to each other, upon request, as promptly as practicable, such information abandonment could have a material adverse impact on Purchaser or any of its Affiliates (including access to books and recordsthe Transferred Entities) and assistance relating in any Post-Closing Period (disregarding, for this purpose, any reduction or elimination of a Tax Asset of a Transferred Entity existing immediately prior to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(bClosing). Any information obtained under this Section 9.1(b) 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.
(c) Each In the case of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts a Tax Proceeding of or with respect to properly retain and maintain the Tax and accounting records any of the HNC Business Transferred Entities for any Straddle Period (other than a Tax Proceeding described in Section 7.07(d)), the Controlling Party shall have the right and the Schnitzer Business that relate obligation to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective agents and representativesconduct, at times and dates reasonably and mutually acceptable to the partiesits own expense, to from time to time inspect and review such records as such other party may deem necessary or appropriateTax Proceeding; provided, however, that in all cases(i) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c(ii) the Controlling Party shall be kept confidential, except as may be otherwise necessary consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the filing Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding and attend any meetings or conferences with the relevant Governmental Entity and (vi) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Tax Returns the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or in the conduct of a Contest or other Tax proceeding.delayed; provided, further, however, that the
Appears in 1 contract
Tax Contests. (a) After the Closing Date, HNC and JVOI The Sellers shall jointly control the conduct, through counsel of their own choosing, conduct of any audit, claim for refund, audit or other administrative or judicial proceeding involving any asserted Tax liability or refund with respect to Taxes relating to Prime, the HNC Business FDS Assets, the GE/Macy's Assets, the May Assets or the Schnitzer Business (a "Tax Contest") solely to the extent of any issues for which the Sellers have an indemnification obligation under this Agreement (other than with respect to a Straddle Period or a Tax Contest involving a consolidated, combined, affiliated or unitary Tax Return which includes the Purchaser or any Affiliate thereof (including Prime), which Tax Contest shall be conducted as provided in clauses (b)-(c) below), and the Purchaser shall control the conduct of all other Tax Contests with respect to any Tax Liability relating to Pre-Closing Taxable Periods Prime, the FDS Assets, the GE/Macy's Assets, the May Assets or the Business; (b) in the case of any Tax Contest with respect to a Straddle Periods (any such auditPeriod, claim for refundthe controlling party shall be whichever of the Purchaser, on the one hand, or proceeding relating the Sellers, on the other hand, would bear the greater Tax Liability with respect to an asserted such Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallContest if the Governmental Authority was successful in such proceeding; provided, and each of them however, that neither party shall cause its Affiliates not to, settle, compromise and/or concede any portion of settle such Tax Contest without the prior written consent of the other party, which consent shall not be unreasonably withheld and (c) neither any Seller nor any Affiliate thereof shall be entitled to (i) review any consolidated, combined, affiliated or delayed.
(b) HNC and JVOI shall furnish unitary Tax Return which includes the Purchaser or cause to be furnished to each other, upon request, as promptly as practicable, such information any Affiliate thereof (including access to books and recordsPrime), or (ii) and assistance relating to the HNC Business and the Schnitzer Business as is reasonably requested for the filing of participate in any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any consolidated, combined, affiliated or unitary Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out Return which includes the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destruction, abandonment or disposition of all Purchaser or any portions of such records, Affiliate thereof (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingincluding Prime).
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Federated Department Stores Inc /De/)
Tax Contests. (ai) After the Closing DateClosing, HNC each of Parent, on the one hand, and JVOI Holders’ Representative, on the other hand, shall jointly control promptly notify the conduct, through counsel of their own choosing, other Party in writing upon receipt from a Taxing Authority of any written notice of any pending or threatened audit, claim for refundexamination, claim, dispute or administrative or judicial proceeding involving any asserted controversy relating to Taxes (a “Tax liability or refund Claim”) with respect to the HNC Business or the Schnitzer Business relating to Company for a Pre-Closing Taxable Periods Tax Period or Straddle Periods any Losses for which such other Party (or any of its Affiliates) could be liable pursuant to this Agreement; provided, however, the failure to give such audit, claim for refund, or proceeding notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party has been prejudiced as a result of such failure.
(ii) With respect to any Tax Claim relating to an asserted Taxes or Tax liability referred Returns within the scope of Section 5.8(a) or Section 5.8(b)(y), the Holders may elect, through Holders’ Representative, solely at the Holders’ own cost and expense, to herein as a “Contest”control all proceedings in connection with such Tax Claim (including selection of counsel). Neither HNC nor JVOI shall; provided, however, that (x) Holders’ Representative (on behalf of the Holders) shall keep Parent informed of all material developments regarding such Tax Claim and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion of settle such Contest Tax Claim without the written consent of the other partyParent, which consent shall not be unreasonably withheld withheld, conditioned or delayed, and (y) Parent and its counsel (at Parent’s expense) may participate in (but not control the conduct of) the defense of such Tax Claim.
(biii) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with With respect to any Tax Claim relating to Taxes or Tax Returns within the scope of Section 5.8(b)(x), or within the scope of Section 5.8(a) or Section 5.8(b)(y) which Holders’ Representative does not elect to control pursuant to Section 5.8(c)(ii), Parent shall, solely at Parent’s own cost and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidentialexpense, except as may be otherwise necessary control all proceedings in connection with the filing such Tax Claim (including selection of Tax Returns or in the conduct of a Contest or other Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriatecounsel); provided, however, that to the extent that any such Tax Claim could reasonably be expected to result in the Holders being liable for any amounts hereunder, (x) Parent shall keep Holders’ Representative informed of all casesmaterial developments regarding such Tax Claim, (y) Holders’ Representative and its counsel (at the Holders’ expense) may participate in (but not control the conduct of) the defense of such activities are Tax Claim, and (z) Parent shall not settle such Tax Claim without the written consent of Holders’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. 66
(iv) Any dispute, controversy or claim between Parent and Holders’ Representative with respect to be conducted during normal business hours. Any information obtained under the defense of any Tax Claim, as described in this Section 9.1(c) 5.8(c), shall be kept confidentialresolved pursuant to Section 5.8(i).
(v) In the event of any conflict between the provisions of this Section 5.8(c), except as may be otherwise necessary in connection with and the filing provisions of Tax Returns or in Section 8.4(a), the conduct provisions of a Contest or other Tax proceedingthis Section 5.8(c), shall control.
Appears in 1 contract
Sources: Merger Agreement (Invitae Corp)
Tax Contests. (ai) After the Closing Date, HNC and JVOI shall jointly control the conduct, through counsel of their own choosing, If any Tax Authority asserts a Tax Claim in respect of any auditTax described in clauses (i), claim (ii) and (iii) of Section 7.19(a) or clauses (i), (ii) and (iii) of Section 7.19(b), then a Party to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other Party or Parties to this Agreement; provided, that the failure of such Party to give such prompt notice shall not affect the rights of such Party or relieve any other Party of any of its obligations under this Section 7.19, except to the extent that the other Party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for refundsuch Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Tax Authority.
(ii) While the indemnities in Section 7.19(a) remain in effect, or administrative or judicial proceeding involving the Everest Sellers shall have the sole right to control any asserted Tax liability or refund Proceeding to the extent that it relates to any Tax that is an Excluded Tax described in clauses (i), (ii) and (iii) of Section 7.19(a); provided, that (A) the Everest Sellers shall inform Purchaser in a timely manner and in reasonable detail about the conduct of such Tax Proceeding; (B) the Everest Sellers shall consider in good faith any reasonable comments provided by Purchaser with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shall, and each of them shall cause its Affiliates not to, settle, compromise and/or concede any portion conduct of such Contest Tax Proceeding; (C) the Everest Sellers shall not, without the Purchaser’s consent of the other party, (which consent shall not be unreasonably withheld withheld, conditioned or delayed.
(b) HNC and JVOI shall furnish or cause ), agree 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 HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) settlement with respect to any Tax Proceeding if such settlement would reasonably be expected to adversely affect the Tax liability of any Purchaser Tax Indemnitee (taking into account Sellers’ indemnification obligations under this Agreement); and each party (D) the Everest Sellers shall execute and deliver such powers of attorney and other documents as are necessary not be entitled to carry out the intent of take any action or make any omission pursuant to this Section 9.1(b). Any information obtained 7.19(d)(ii) if to do so would prejudice the Purchaser’s recourse under this Section 9.1(b) shall the R&W Insurance Policy or would be kept confidential, except as may be otherwise necessary in connection incompatible with the filing terms thereof (including, without limitation and for the avoidance of Tax Returns or in doubt, any provisions granting rights of conduct over those same matters to the conduct of a Contest or other Tax proceedinginsurers under the R&W Insurance Policy).
(ciii) Each of HNC and JVOI shallWhile the Olympus Deferred Cash Amount (or any part thereof) continues to be held in the Olympus Escrow Account, and the Olympus Sellers shall cause its Affiliates to: have the sole right to control any Tax Proceeding to the extent that it relates to any Tax that is an Excluded Tax described in clauses (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateof Section 7.19(b); provided, howeverthat (A) the Olympus Sellers shall inform Purchaser in a timely manner and in reasonable detail about the conduct of such Tax Proceeding; (B) the Olympus Sellers shall consider in good faith any reasonable comments provided by Purchaser with respect to the conduct of such Tax Proceeding; (C) the Olympus Sellers shall not, without Purchaser’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), agree to any settlement with respect to any Tax Proceeding if such settlement would reasonably be expected to adversely affect the amount that may be deducted from the Olympus Deferred Cash Amount held in the Olympus Escrow Account pursuant to Section 7.19(b); and (D) the Olympus Sellers shall not be entitled to take any action or make any omission pursuant to this Section 7.19(d)(iii) if to do so would prejudice the Purchaser’s recourse under the R&W Insurance Policy or would be incompatible with the terms thereof (including, without limitation and for the avoidance of doubt, any provisions granting rights of conduct over those same matters to the insurers under the R&W Insurance Policy).
(iv) Purchaser shall have the sole right to control, at its own expense, any Tax Proceeding involving the Transferred Entities (other than any Tax Proceeding described in Section 7.19(d)(ii) or Section 7.19(d)(iii)); provided, that in all cases, such activities are the case of any Tax Proceeding for which any Seller could be liable pursuant to be conducted during normal business hours. Any information obtained under this Section 9.1(c7.19, (A) Purchaser shall be kept confidential, except as may be otherwise necessary inform Sellers in connection with the filing of Tax Returns or a timely manner and in reasonable detail about the conduct of such Tax Proceeding; (B) Purchaser shall consider in good faith any reasonable comments provided by Sellers with respect to the conduct of such Tax Proceeding; and (C) Purchaser shall not, without Sellers’ consent (which consent shall not be unreasonably withheld, conditioned or delayed), agree to any settlement with respect to any Tax Proceeding if such settlement would reasonably be expected to give rise to a Contest liability for indemnification pursuant to this Section 7.19.
(v) Notwithstanding anything to the contrary in this Agreement, Sellers shall have the exclusive right to control in all respects, and neither Purchaser nor any of its Affiliates shall be entitled to participate in, any Tax Proceeding with respect to (A) any Tax Return of any of the Sellers or any of their respective Subsidiaries (other than the Transferred Entities); and (B) any Tax proceedingReturn of a consolidated, combined or unitary group that includes any Seller or any of its Subsidiaries (other than a Transferred Entity), on the one hand, and any Transferred Entity, on the other hand.
Appears in 1 contract
Sources: Deed (WEX Inc.)
Tax Contests. (a) After If any taxing authority asserts a Tax Claim, then the Closing DateParty first receiving notice of such Tax Claim shall provide prompt written notice thereof to the other Party; provided, HNC and JVOI however, that the failure of such Party to give such prompt notice shall jointly control not relieve the conduct, through counsel of their own choosing, other Party of any auditof its obligations under this Article VII, claim except to the extent that the other Party is prejudiced by such failure. Such notice shall specify in reasonable detail the basis for refund, such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the taxing authority.
(b) In the case of a Tax Proceeding of or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to either of the HNC Business Companies or the Schnitzer Business relating to any of their respective Subsidiaries for any Pre-Closing Taxable Periods Tax Period or any Straddle Periods Tax Period (in each case, other than a Tax Proceeding described in Section 7.7(c)), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided, however, that (i) the Controlling Party shall provide the non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such auditTax Proceeding, claim for refund(iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, or proceeding relating (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to an asserted participate in such Tax liability referred to herein as a “Contest”). Neither HNC nor JVOI shallProceeding, and each of them (vi) the Controlling Party shall cause its Affiliates not to, settle, compromise and/or concede or abandon any portion of such Contest Tax Proceeding without obtaining the prior written consent of the other partyNon-Controlling Party, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
; provided, further, however, that the Controlling Party shall not have any obligations (b) HNC and JVOI shall 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 HNC Business and the Schnitzer Business as is reasonably requested for Non-Controlling Party shall not have any rights) under the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) immediately foregoing proviso with respect to any portion of such Tax Proceeding (and each party shall execute and deliver such powers any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of attorney and other documents as are necessary to carry out the intent its Affiliates. For purposes of this Section 9.1(b). Any information obtained under this Section 9.1(b) Agreement, “Controlling Party” shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or mean Seller in the conduct case of a Contest any Tax Proceeding of or other Tax proceeding.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts with respect to properly retain and maintain the Tax and accounting records either of the HNC Business and the Schnitzer Business that relate to Companies for any Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party with written notice prior to any destructionTax Period or, abandonment or disposition of all or any portions of such records, (ii) transfer such records to the other party upon its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection with the filing of Tax Returns or in the conduct case of a Contest any Tax Proceeding of or other with respect to either of the Companies for any Straddle Tax proceeding.Period, Seller if Seller and its Affiliates
Appears in 1 contract
Tax Contests. In the event that any Governmental Authority informs a Party of any audit, litigation, dispute, or other proceeding with respect to Taxes attributable to a Pre-Closing Tax Period or Straddle Period (acollectively, a “Tax Contest”), the Party so informed shall notify the other Party of such matter promptly, and in all events within five (5) After Business Days, after receiving notice of such Tax Contest; provided that failure to promptly notify shall not reduce the other Party’s indemnity obligation hereunder except to the extent such Party’s ability to defend against such matter is actually prejudiced thereby. Agent shall, at Sellers’ cost and expense, control the conduct and defense of any Tax Contest relating to Tax matters of the Company for periods ending on or before the Closing Date, HNC and JVOI shall Agent shall, at Sellers’ cost and expense, control the conduct and defense of any Tax Contest relating to Tax matters of the Company for any Straddle Period; provided, however, Parent may, at its option, elect to jointly control such Tax Contest, at its own cost and expense, related to any Straddle Period and, if the conductCompany could be held liable for any Tax obligations related thereto, through counsel of their own choosing, of any audit, claim for refund, or administrative or judicial proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, claim for refund, or proceeding relating to an asserted Tax liability referred to herein as a “Contest”)Period. Neither HNC nor JVOI Each Party shall, and each of them shall cause its Affiliates not tohowever, settle, compromise and/or concede any portion of such Contest without the consent of keep the other partyParty informed of all developments on a timely basis, which consent shall not be unreasonably withheld or delayed.
(b) HNC and JVOI shall 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 provide the HNC Business and the Schnitzer Business as is reasonably requested for the filing other Party with copies of any and all written correspondence received from the Governmental Authority related to such Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) with respect to any Tax and each party shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other party Party with the opportunity to attend conferences, hearings and other meetings with or involving the Governmental Authority and to review and provide comments with respect to written notice responses provided to the Governmental Authority with respect to such Tax Contest. Each Party shall consult the other Party and obtain the other Party’s consent (which shall not be unreasonably withheld, conditioned or delayed) prior to accepting any destruction, abandonment proposed adjustment or disposition of all entering into any settlement or agreement in compromise regarding any portions of such records, (ii) transfer such records Taxes to the other party upon its written request prior extent such proposed adjustment, settlement or agreement in compromise would give rise to any such destruction, abandonment or disposition and (iii) allow the other party and their respective agents and representatives, at times and dates reasonably and mutually acceptable an indemnification obligation pursuant to the parties, to from time to time inspect and review such records as such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under terms of this Section 9.1(c) 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 proceedingAgreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Aceto Corp)
Tax Contests. (a) After the Closing DateClosing, HNC and JVOI shall jointly control if any Governmental Entity issues to the conduct, through counsel Company or any Transferred Entity (i) a notice of their own choosing, of any its intent to audit, claim for refund, examine or administrative or judicial conduct any other proceeding involving any asserted Tax liability or refund with respect to the HNC Business or the Schnitzer Business relating to any Tax Returns of any Transferred Entity for any Pre-Closing Taxable Periods Tax Period or Straddle Periods (any such audit, claim for refundPeriod, or proceeding relating (ii) a notice of deficiency, a notice of its intent to an asserted assess a deficiency or a notice of proposed adjustment concerning Tax liability referred to herein as Returns of any Transferred Entity for any Pre-Closing Tax Period or Straddle Period (the items set forth in clauses (i) and (ii), each a “ContestTax Claim”), the Company shall promptly notify ▇▇▇▇▇▇▇▇ and Logo of the receipt of such communication. Neither HNC nor JVOI shallThe Company shall control the conduct of any Tax Claim; provided, that the Company shall keep ▇▇▇▇▇▇▇▇ and each Logo reasonably informed of them the status of such Tax Claim (including providing copies of all material written correspondence with the Internal Revenue Service or other Tax authority regarding such matter) and the Company shall cause its Affiliates not to, settle, compromise and/or concede any portion of such Contest Tax Claim without ▇▇▇▇▇▇▇▇’ (in the consent case of a Tax Claim in respect of an SGK Entity) or Logo’s (in the other partycase of a Tax Claim with respect to an SGS Entity) prior written consent, which consent shall not be unreasonably withheld withheld, conditioned, or delayed.
(b) HNC and JVOI shall 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 Notwithstanding anything to the HNC Business contrary in this Agreement, ▇▇▇▇▇▇▇▇ will have the exclusive right to control in all respects, and neither the Schnitzer Business as is reasonably requested for the filing Company, Logo nor any of its Affiliates will be entitled to participate in, any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Proceeding with respect to (i) any Tax Return of any ▇▇▇▇▇▇▇▇ Group Entity; and each party (ii) any Tax Return of a consolidated, combined or unitary group that includes any ▇▇▇▇▇▇▇▇ Group Entity (including any Combined Tax Return); provided, however, to the extent that any such Tax Proceeding could reasonably be expected to give rise to adverse consequences for the Company, Logo or any of their Affiliates, ▇▇▇▇▇▇▇▇ shall execute and deliver keep Logo reasonably informed of the status of such powers Tax Claim (including providing copies of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) shall be kept confidential, except as may be otherwise necessary in connection all material written correspondence with the filing of Tax Returns or in the conduct of a Contest Internal Revenue Service or other Tax proceedingauthority regarding such matter) and ▇▇▇▇▇▇▇▇ shall not settle, compromise and/or concede any portion of such Tax Claim without the prior written consent of Logo, which shall not be unreasonably withheld, conditioned, or delayed.
(c) Each of HNC and JVOI shallNotwithstanding anything to the contrary in this Agreement, Logo will have the exclusive right to control in all respects, and shall cause neither the Company, ▇▇▇▇▇▇▇▇ nor any of its Affiliates to: will be entitled to participate in, any Tax Proceeding with respect to (i) use its commercially reasonable efforts to properly retain any Tax Return of any Logo Group Entity; and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destructionTax Return of a consolidated, abandonment combined or disposition and unitary group that includes any Logo Group Entity (iii) allow the other party and their respective 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 such other party may deem necessary or appropriateincluding any Combined Tax Return); provided, however, to the extent that in any such Tax Proceeding could reasonably be expected to give rise to adverse consequences for the Company, ▇▇▇▇▇▇▇▇ or any of their Affiliates, Logo shall keep ▇▇▇▇▇▇▇▇ reasonably informed of the status of such Tax Claim (including providing copies of all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) shall be kept confidential, except as may be otherwise necessary in connection material written correspondence with the filing of Tax Returns or in the conduct of a Contest Internal Revenue Service or other Tax proceedingauthority regarding such matter) and Logo shall not settle, compromise and/or concede any portion of such Tax Claim without the prior written consent of ▇▇▇▇▇▇▇▇, which shall not be unreasonably withheld, conditioned, or delayed.
Appears in 1 contract
Sources: Contribution Agreement (Matthews International Corp)
Tax Contests. (a) After the Closing Date, HNC and JVOI Buyer shall jointly control the conduct, through counsel notify Seller within ten (10) days of their own choosing, its written receipt of any notice of Tax deficiency, proposed Tax adjustment, Tax assessment, Tax audit, claim for refund, Tax examination or other administrative or judicial proceeding involving any asserted Tax liability court proceeding, suit, dispute or refund other claim primarily with respect to Taxes (a “Tax Claim”) that, if determined adversely to the HNC Business taxpayer or after the Schnitzer Business relating to Pre-Closing Taxable Periods or Straddle Periods (any such audit, lapse of time would be grounds for a claim for refundindemnity pursuant to Section 6.1 hereof; provided, however, that a failure by Buyer to provide notice of a Tax Claim within such ten (10) day period shall not entitle Seller to reduce the amount of the liability required to be paid pursuant to Section 6.1 unless such failure results in a material detriment to Seller, in which case the amount Seller is required to pay with respect to such liability shall only be reduced by the amount of such detriment. Thereafter, Buyer shall deliver to Seller, as promptly as possible, copies of all relevant notices and documents (including court papers) received by Buyer. In the case of any Tax Claim, Buyer and Seller may each participate, at its own expense, in the audit or proceeding; provided that the audit or proceeding relating shall be controlled by Buyer; provided, further, that at Seller’s election (upon written notice to an asserted Tax liability referred Buyer) and its own expense, Seller may take control of the audit or proceeding, provided Seller agrees to herein as a “Contest”). Neither HNC nor JVOI shallindemnify Buyer for any resulting Taxes; provided, and each of them further, however, that (i) neither Party shall cause its Affiliates not to, settle, compromise and/or concede any portion of settle such Contest audit or proceeding without the consent of the other partyParty, which consent shall not be unreasonably withheld withheld, conditioned or delayed.
delayed and (bii) HNC and JVOI each Party shall 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 keep the HNC Business and the Schnitzer Business as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Contest. HNC and JVOI shall reasonably cooperate with each other in the conduct of any Contest or other proceeding involving or otherwise relating to the HNC Business or the Schnitzer Business (or their income or assets) Party timely informed with respect to any Tax the commencement, status and each party shall execute and deliver such powers nature of attorney and other documents as are necessary to carry out the intent of this Section 9.1(b). Any information obtained under this Section 9.1(b) 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.
(c) Each of HNC and JVOI shall, and shall cause its Affiliates to: (i) use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the HNC Business and the Schnitzer Business that relate to Pre-Closing Taxable Periods or Straddle Periods and shall provide the other 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 its written request prior to any such destruction, abandonment or disposition and (iii) allow the other party and their respective 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 such other party may deem necessary or appropriate; provided, however, that in all cases, such activities are to be conducted during normal business hours. Any information obtained under this Section 9.1(c) 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 proceedingClaim.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Merrimack Pharmaceuticals Inc)