Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement. (b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement. (c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue. (i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax. (ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue. (iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue. (iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then: (A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or (B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund. (C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense. (D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue). (v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue. (d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue. (i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy. (ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue. (iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue. (iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then: (A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or (B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund. (C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense. (D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue). (v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 3 contracts
Samples: Tax Sharing and Indemnification Agreement (Certegy Inc), Tax Sharing and Indemnification Agreement (Fidelity National Information Services, Inc.), Tax Sharing and Indemnification Agreement (Certegy Inc)
Tax Controversies. Each Party shall promptly notify the other Party in writing (aa “Notification”) Each after receipt of Certegy and Equifax shall have full responsibility and discretion in handlingnotice of any pending or threatened audits, settling, assessments or contesting any Tax Controversy involving a Tax for which such party is liable pursuant proceedings with respect to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax the other Party (or any of its Affiliates) is liable under this Agreement Section 7.4 (a “Tax Claim”). Failure to give such Notification shall not relieve the indemnifying party from liability under Section 7.4, except if and (ii) one or more issues to the extent that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such indemnifying party is liablematerially prejudiced thereby. FurthermoreSeller shall control the conduct, Equifax may participate in through counsel of its own choosing at its own expense, of any Tax Controversy with respect Claim relating to Restructuring Taxes regardless a Pre-Closing Tax Period of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Company Entity and any Tax Controversy Claim involving the consolidated U.S. federal income Tax Return of SunGard Capital (and any combined, unitary or consolidated state Tax Return of SunGard Capital); provided that Parent shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known be entitled to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for participate, at Parent’s expense, in any such Tax Claim for which Parent may be liable under this Agreement.
Section 7.4 or that may affect the Taxes of Parent or any Company Entity in any Post-Closing Tax Period or the portion of a Straddle Period beginning after the Closing Date. Seller (cand its Affiliates) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not applysettle, and Equifax shall have exclusive control over all stages of the compromise and/or concede any such Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue Claim without the consent of CertegyParent, but which consent shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment not be unreasonably withheld, delayed or similar stage in the proceedingsconditioned; provided, however, Equifax that, so long as Parent has caused to be delivered to SunGard Capital an opinion of nationally recognized counsel mutually agreeable to the Parties that there is a reasonable basis for Parent’s positions, Parent shall be responsible for entitled, through counsel of its own choosing at its own expense, to jointly control with Seller the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance portion of any conferences, meetingssuch Tax Claim that relates to issues that could give rise to an indemnification obligation under Section 7.4(d)(ii)(C) or Section 7.4(d)(ii)(D), and proceedings pertaining Seller shall not settle such portion of such Tax Claim without the consent of Parent. In the case of a Tax Claim that relates to the audit andTaxes for a Straddle Period of any Company Entity or for which Parent is otherwise liable under this Section 7.4, Parent shall, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume control the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as such Tax Claim; provided that Seller and Parent shall jointly control any such Tax Claim in respect of a Straddle Period if Seller has more or substantially the proceedings relate to a Certegy Issue (that is not an Equifax Issue)same reasonably expected liability under Section 7.4, and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, Seller shall be entitled to the extent permitted by law to participate participate, at Seller’s expense, in (1) all conferences, meetings, or proceedings with any other Tax Authority, the subject matter Claim in respect of which is a Certegy Issue (Straddle Period; provided further that is Parent shall not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of settle any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter Claim in respect of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue Straddle Period without the consent of EquifaxSeller, but which consent shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifaxnot be unreasonably withheld, delayed or conditioned. Prior to the issuance The provisions of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expenseSection 10.3(a) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States not apply to Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted Claims governed by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy IssueSection 7.4(c).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 2 contracts
Samples: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, Inc.)
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one The Purchasers, the Principal Sellers or more issues that would result the Blocker Seller, as applicable, shall promptly notify the other relevant Party or Parties in writing upon receipt of notice of any pending or threatened audit, examination or other proceeding relating to (i) any Tax Return of the Company or any Subsidiary relating to any Pass-through Taxes for which Equifax is liable under this Agreement and any Tax period that ends on or before or includes the Closing Date (“Pass-through Tax Proceedings”) or (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless Return of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible the Blocker Corp for any Tax Controversy period that ends on or before or includes the Closing Date (“Blocker Tax Proceedings”). Such notice shall use all reasonable efforts (taking into consideration all include a copy of the relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly portion of any communication with correspondence received from the IRS or other Tax relevant Governmental Authority relating and describe in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt reasonable detail the nature of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifaxclaim.
(ii) If Certegy notifies Equifax The Principal Sellers, acting unanimously, shall have the sole and exclusive right to control the conduct of any Pass-through Tax Proceedings for any Tax period that it objects to ends on or before the proposed adjustment relating to a Certegy Issue (Closing Date, provided that is not an Equifax Issue), then Equifax the Principal Sellers shall not thereafter settle or compromise any such matter without the Purchasers’ consent to the adjustment extent such settlement or compromise of such Certegy Issue without would disproportionately adversely affect the consent of CertegyBlocker Corp and the Purchasers would not be entitled to indemnification pursuant to this Agreement. The Principal Sellers, but acting unanimously, and the Purchasers acting unanimously shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for jointly control the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetingsPass-through Tax Proceedings for any Straddle Period, and proceedings pertaining to neither Party shall settle or compromise any such matter without the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issueother Party’s consent.
(iii) Upon The Blocker Seller shall have the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume sole and exclusive right to control the conduct of all further proceedingsany Blocker Tax Proceedings for any Tax period that ends on or before the Closing Date, with counsel selected by it, at Certegy's sole expense, insofar as provided that the proceedings relate Blocker Seller shall not settle or compromise any such matter without HASI’s consent to a Certegy Issue (that is the extent such settlement or compromise would adversely affect the Blocker Corp and HASI would not an Equifax Issue), be entitled to indemnification from the Blocker Seller. The Blocker Seller and thereafter Certegy and Equifax HASI shall jointly be responsible for control the conduct of proceedings to contest any Blocker Tax Proceedings for any Straddle Period, and neither Party shall settle or compromise any such Certegy Issuematter without the other Party’s consent.
(iv) In the event that Equifax receives a notice of deficiency from any conflict between the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none provisions of which are Equifax Issuesthis Section 6.1(c) and does not relate to an Equifax Issue then:
Section 7.2 (A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issueapplicable), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expenseSection 6.1(c) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refundcontrol.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Tax Controversies. Buyer shall give prompt notice to Seller of the assertion of any claim, or the commencement of any suit, action or proceeding with respect to any Tax liability of any of the Company (each a “Tax Claim”) for which Seller is responsible pursuant to this Agreement; provided that Buyer’s failure to give such notice shall not relieve the Seller of its indemnification obligations hereunder except to the extent (and only to the extent) that Seller has been prejudiced thereby. Seller may, at its own expense, participate in and, upon written notice to Buyer, assume the defense of any Tax Claim for which Seller is responsible pursuant to this Agreement, provided that (i) Seller provides such written notice within ten (10) days after becoming aware of the assertion of any Tax Claim, (ii) the defense of such Tax Claim can be conducted separately from the defense of any Tax Claim for which Seller is not responsible pursuant to this Agreement, (iii) Seller shall (a) Each of Certegy enter into an agreement with Buyer (in form and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable substance reasonably satisfactory to Buyer) pursuant to Article II which Seller agree to be fully responsible (with no reservation of this Agreement. If a Tax Controversy proceeding involves both rights) for all Adverse Consequences relating to such claims and that it will provide full indemnification (iwhether or not otherwise required hereunder) one or more issues that would result in Taxes to Buyer for all Adverse Consequences relating to such claim, (b) unconditionally guarantee the payment and performance of any Liability which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations arise with respect to such Taxes under this Agreement.
claim or the facts giving rise to such claim for indemnification, and (bc) The party responsible furnish Buyer with reasonable evidence that Seller is and will be able to satisfy any such Liability, (iii) Seller’s counsel is reasonably acceptable to Buyer, (iv) Seller shall thereafter consult with Buyer upon Buyer’s reasonable request for such consultation from time to time with respect to such Tax Claim, (iv) Seller shall not, without Buyer’s prior written consent, agree to any settlement with respect to any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by Claim if such settlement could adversely affect any Tax Authority regardless Liability of which party is ultimately responsible Buyer or any Affiliate of Buyer (including, following the Closing, for the avoidance of doubt, the Company) (any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of Claim, a “Seller Tax Claim” and any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to Claim, a Certegy Issue (that is not an Equifax Issue“Buyer Tax Claim”). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax Buyer shall have exclusive control over all stages of Buyer Tax Claims and shall have the Tax Controversy, including full authority right (but not the duty) to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage participate in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance defense of any conferences, meetingsSeller Tax Claim, and proceedings pertaining to the audit andemploy counsel, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency separate from the IRS, or a similar notice from any other counsel employed by Seller in such Seller Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refundClaim.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lin Television Corp), Stock Purchase Agreement (LIN Media LLC)
Tax Controversies. (a) Each of Certegy and Equifax CCOH or, after the CCOH Merger, CCH shall have full responsibility and discretion in handling, settling, or contesting control over any Tax Controversy involving a Tax for which such party is liable pursuant to Article II portion of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in relates solely to Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that any Outdoor Group Member would result in Taxes for which Certegy is be liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in including Taxes for which such Outdoor Group Member joined in filing a Tax Return on a consolidated, combined or unitary basis with any IHM Group Member. IHM shall have control over any portion of a Tax Controversy that relates solely to Taxes for which any IHM Group Member would liable under this Agreement, including Taxes for which such IHM Group Member joined in filing a Tax Return on a consolidated, combined or unitary basis with any Outdoor Group Member. To the extent a Tax Controversy relates to Taxes for which both an IHM Group Member and an Outdoor Group Member would be liable under this Agreement, to the extent possible the various portions of such Tax Controversy shall be distinguished and allocated so that each party will control the portion of such Tax Controversy which relates solely to Taxes for which it would be liable under this Agreement. To the extent any portion of a Tax Controversy cannot be distinguished as being attributable solely to Taxes for which only an IHM Group Member or an Outdoor Group Member would be liable under this Agreement, if the Tax Return that is liablethe subject of the Tax Controversy was filed by a member of the Outdoor Group, then CCOH or, after the CCOH Merger, CCH shall have control over such portion of the Tax Controversy, and otherwise, IHM shall have control over such portion of the Tax Controversy. FurthermoreIn exercising control over any portion of any Tax Controversy, Equifax CCOH, or after the CCOH Merger, CCH or IHM, as applicable, (i) shall be entitled to act through counsel and other representatives of its own choosing, at its sole expense, (ii) shall consult with the other party with respect to any portion of any Tax Controversy the resolution of which could reasonably be expected to have an adverse impact on the other party, and (iii) without the consent of the other party (which consent shall not be unreasonably withheld, delayed or conditioned), shall not settle or compromise any portion of any Tax Controversy if such settlement or compromise could reasonably be expected to have an adverse impact on the other party. IHM (with respect to any portion of a Tax Controversy controlled by CCOH, or after the CCOH Merger, CCH) and CCOH, or after the CCOH Merger, CCH (with respect to a Tax Controversy controlled by IHM and for which an Outdoor Group Member may have liability under this Agreement) shall have the right to observe the conduct of any proceedings with counsel and other representatives of its choosing, at its sole expense. Notwithstanding anything to the contrary in the foregoing, CCOH, or after the CCOH Merger, CCH, shall control and IHM shall be entitled to fully participate in any Tax Controversy with respect to Restructuring Income Taxes regardless of whether it has liability or indemnification obligations any Affiliated Group of which Radio Computing Services (UK) Ltd. is a member relating to any Taxable Period beginning before any Deconsolidation Event with respect to such Taxes under this Agreement.
Radio Computing Services (bUK) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts Ltd. CCOH, CCH and circumstances known IHM agree to fully cooperate as reasonably requested with the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly other in the negotiation, settlement or litigation of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible liability for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance Taxes of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is IHM Group Member or includes such Certegy IssueOutdoor Group Member.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 2 contracts
Samples: Tax Matters Agreement (Clear Channel Outdoor Holdings, Inc.), Tax Matters Agreement (Clear Channel Holdings, Inc.)
Tax Controversies. (a) Each In the event that either Party becomes aware that a Tax Controversy may have a Tax effect on the other Party in excess of Certegy $50,000, regardless of whether such Tax Controversy has been previously disclosed by a third party to the other Party or not, that Party will inform the other Party of the existence and Equifax substance of the Tax Controversy and the manner in which it may affect the other Party promptly upon becoming aware of such effect.
(i) Sybron shall not take any action or communicate with any Taxing Authority in connection with any Tax Controversy in the event that such action or communication is likely to have a Tax effect on SDS or any member of the SDS Group in excess of $50,000 unless and until Sybron: (A) informs SDS of such Tax Controversy and (B) affords SDS the opportunity to be involved in such Tax Controversy.
(ii) SDS shall not take any action or communicate with any Taxing Authority in connection with any Tax Controversy in the event that such action or communication is likely to have a Tax effect on Sybron or any member of the Sybron Group in excess of $50,000 unless and until SDS: (A) informs Sybron of such Tax Controversy and (B) affords Sybron the opportunity to be involved in such Tax Controversy.
(c) Except as otherwise provided in this Article IV, Sybron shall have full responsibility and discretion in handling, settling, settling or contesting any Tax Controversy involving a Tax Return for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability liability, and any legal and accounting costs incurred in handling, settling or indemnification obligations with respect to contesting any such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions be borne by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy IssueSybron.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy SDS shall be responsible for the conduct handling, settling or contesting any Tax Controversy which involves matters for which SDS is obligated to indemnify Sybron under Article II or Article VI of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit andthis Agreement; provided that Sybron may, at its discretion, assume responsibility on its own expensefor handling, Equifax shall have the right settling or contesting any such Tax Controversy upon providing prior written notice to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate SDS that it has chosen to an Equifax Issue (that is not a Certegy Issue), do so and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving the consent of SDS to such an arrangement, which consent may not be unreasonably withheld; provided that if such Tax Controversy could have a written request from Equifaxgreater effect on Sybron than SDS, SDS shall be deemed to have given no later than a date reasonably necessary to permit preparation such consent. Each party shall immediately inform the other party of any such Tax Controversy. SDS shall bear all reasonable legal and timely filing of a petition accounting costs incurred in the United States handling, settling or contesting any such Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, Controversy. SDS shall be entitled to the extent permitted by law to attend and participate in (1) all conferences, meetings, or proceedings any meeting with any Tax Authority, the subject matter representatives of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue)Taxing Authority concerning Restructuring Taxes.
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 2 contracts
Samples: Tax Sharing and Indemnification Agreement (Sybron Dental Specialties Inc), Tax Sharing and Indemnification Agreement (SDS Holding Co)
Tax Controversies. (ai) Each Allied and Laidxxx xxxll each use reasonable efforts to keep the other advised as to the status of Certegy Tax audits and Equifax litigation involving any direct, indirect or contingent Taxes which could give rise to a liability of the Laidxxx Xxxlers to Allied under this Agreement for any pre-closing period (a "Tax Liability Issue"). Such efforts shall include attorney comfort letters provided to Allied's independent auditors and discussions with the Laidlaw attorneys representing the Allied Subsidiaries as requested by Allied. Laidxxx xxxees to timely notify Allied regarding any proposed written communication (i.e., communications not relating to inquiries or requests for information) by Laidxxx xx any such Taxing Authority with respect to a Tax Liability Issue to the extent that the issue would impact a post-closing period of Allied or the Acquired Subsidiaries. Allied shall have the right to consult with Laidxxx xxxarding any response to such communications.
(ii) Laidxxx xxxll have full responsibility for and discretion in handling any Tax Controversy including, without limitation, an audit, a protest to the appeals division of the IRS, or similar state or local appellate division, an objection to Revenue Canada or any provincial tax authority and litigation in the U.S. Tax Court, the Tax Court of Canada or any other court of competent jurisdiction (a "Tax Proceeding") for any pre-closing period. Allied or the Acquired Subsidiaries shall give the Laidxxx Xxxlers the ability to handle any Tax Controversy whether by power of attorney or as otherwise required by the Taxing Authority. Unless the Laidxxx Sellers tender payment of any tax owed, with penalty and interest, to Allied or the Tax Authority, final settlement of any Tax Controversy will require Allied approval. However, upon request by Allied and with the consent of Laidxxx, Xxlied at its own expense shall have full responsibility and discretion in handling, settling, or contesting handling any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible Proceeding for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy IssuePre-closing tax period.
(iii) Upon In the issuance event that any one of the Acquired Subsidiaries is required or elects to pay any Tax, file any bond or deposit any amount in connection with a notice of proposed adjustment Tax Proceeding (or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate pay any Canadian Tax it may decide to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings object to contest such Certegy Issue.or
(iv) In If the event that Equifax receives a notice completion or settlement of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency Proceeding relating to a Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a tax benefit for any Post-Closing Tax Period to the Certegy IssueAllied Parties, the Acquired Subsidiaries and any Affiliates, then Equifax (at Certegy's sole expense) such persons shall file pay to Laidxxx xxx actual amount of such tax benefit realized by such persons as it relates to such Pre-Closing Tax Period as and when received on an after tax basis. No payment will be made under this paragraph for less than $50,000 per period or for a claim for refund thereof and, if the claim is denied, bring an action in a court period of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue)more than ten years.
(v) If the proposed adjustment completion or settlement of any Tax Proceeding relating to a Certegy Issue is also an Equifax Issue (Pre-Closing Tax Period, tax controversy or if amended Tax Return gives rise to a tax liability for any Post-Closing Tax Period to the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue)Allied Parties, the Acquired Subsidiaries and any Affiliates, then Equifax shall Laidxxx xxxll pay to such persons the actual amount of such tax liability on an after-tax basis as and when paid. No payment will be fully responsible made under this paragraph for the conduct less than $50,000 per period or for a period of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issuemore than ten years.
(dvi) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part By written notice to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustmentLaidxxx, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax Xxlied shall have the right to attend all such instruct Laidxxx xx forego proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively respect to one or more Equifax Issues (none items for which Laidxxx xxx be liable to indemnify Allied. Such notice shall constitute a waiver of which are Certegy Issues) and does the right of Allied to indemnification for any Taxes arising out of such item for the period or periods involved, but shall not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing otherwise waive any rights of Laidxxx xx any refund of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issuedeposit under Section 12.5(iii).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allied Waste Industries Inc)
Tax Controversies. (a) Each of Certegy and Equifax Except as otherwise provided in this Article ----------------- VI, Xxxxxxxx or RTI shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax Return for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one it has filing responsibility, MFCI shall have full responsibility and discretion in handling, settling, or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in contesting any Tax Controversy with respect to Restructuring Taxes regardless of whether involving a Tax Return for which it has liability filing responsibility, and MHCI shall have full responsibility and discretion in handling, settling, or indemnification obligations with respect to such Taxes under this Agreementcontesting any Tax Controversy involving a Tax Return for which it has filing responsibility, and any costs incurred in handling, settling or contesting any Tax Controversy shall be borne by the Party having full responsibility and discretion therefor.
(b) The party Party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Taxing Authority regardless of which party Party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax Each Party shall notify Certegy promptly give prompt notice to the other of any communication (including, but not limited to, requests for information that might affect the treatment of any Tax Item and notices of proposed adjustments affecting the treatment of any Tax Item) with the IRS or other Taxing Authority which may affect any Tax Item of the other Party. Such other Party shall have the right to provide the Party having responsibility for the audit with information and input as to the response to such communication as may be appropriate under the circumstances. The Party having responsibility for the audit shall notify all affected Parties promptly if any Taxing Authority relating in whole or in part proposes an assessment of Taxes for which any other Party to any Certegy Issuethis Agreement could be liable to indemnify and hold another Party to this Agreement harmless from and against the amount of such Taxes pursuant to this Agreement.
(id) Certegy MFCI and/or MHCI (as the case may be) shall have 30 days after receipt of such the notice from Equifax required under Section 6.1(c) within which to object in writing to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue)adjustment. If Certegy MFCI and/or MHCI (as the case may be) does not notify Equifax RTI within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax RTI shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(iie) If Certegy MFCI and/or MHCI (as the case may be) notifies Equifax RTI that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue)adjustment, then Equifax RTI shall not thereafter consent to the adjustment or compromise of such Certegy Issue the proposed adjustment without the consent of CertegyMFCI and/or MHCI (as the case may be) which shall not be unreasonably withheld or delayed, but shall cooperate with Certegy MFCI and/or MHCI (as the case may be) to resolve the Certegy Issue issue on a basis acceptable to CertegyMFCI and/or MHCI (as the case may be). Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax RTI shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax and shall notify Certegy in advance MFCI and/or MHCI (as the case may be) of any conferences, meetings, and major developments in the audit proceedings pertaining to the audit and, at its own expense, Certegy shall an issue for which MFCI and/or MHCI may have the right obligation under this Agreement with respect to attend all any Taxes that may arise as a result of an adverse determination with respect to such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issueissue.
(iiif) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedingsproceedings for which MFCI and/or MHCI (as the case may be) has provided RTI with a notice of objection pursuant to Section 6.1(d), Certegy MFCI and/or MHCI (as the case may be) shall assume the conduct of all further proceedings, with counsel selected by itit (with the reasonable approval of RTI), at Certegy's its sole expense, insofar as the proceedings relate expense relates to a Certegy Issue an issue that MFCI and/or MHCI (that as the case may be) is not an Equifax Issue)(are) contesting, and thereafter Certegy and Equifax RTI, MFCI, and/or MHCI shall jointly be responsible for the conduct of proceedings to contest such Certegy Issueissue(s).
(ivg) In the event that Equifax RTI receives a notice of deficiency from the IRS, or a similar notice from any other Tax Taxing Authority, and such notice relates exclusively to one in whole or more Certegy Issues (none of which are Equifax Issues) and does not relate in part to an Equifax Issue issue that MFCI and/or MHCI (as the case may be) is (are) contesting, then:
(Ai) upon Upon receiving a written request from CertegyMFCI and/or MHCI (as the case may be), given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Taxing Authority, Equifax RTI shall timely file such petition petition; provided, however, that notwithstanding such request, RTI shall have the option to pay the amount of the deficiency and not seek or make any claim under this Agreement for indemnification for such Taxes from MFCI and/or MHCI (at Certegy's sole expenseas the case may be); or
(Bii) If (1) Certegy MFCI and/or MHCI (as the case may be) does not request Equifax RTI to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(ASection 6.01(g)(i) hereof, and (2) Certegy RTI does not, on its own initiative, timely file a petition, and (3) MFCI and/or MHCI (as the case may be) requests that Equifax RTI file a claim for refund, and (3) Certegy provides Equifax with sufficient funds then RTI shall either pay the deficiency or use the proceeds of a loan from MFCI and/or MHCI, in the amount described in Section 6.01(g)(i), to pay the deficiency relating to the Certegy Issuedeficiency, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof thereof, and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(Ciii) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issueissue, and RTI notifies MFCI and/or MHCI (as the case may be) that it does not intend to appeal such determination, then Certegy MFCI and/or MHCI (as the case may be) shall have the right to cause Equifax RTI to appeal from such adverse determination at CertegyMFCI's sole and/or MHCI's (as the case may be) expense.
(Div) Certegy MFCI and/or MHCI, and its (or their) representatives, (as the case may be) at Certegy's sole its (their) expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Taxing Authority, the subject matter of which is or includes an issue for which MFCI and/or MHCI (as the case may be) may have obligation under this Agreement with respect to any Taxes that may arise as a Certegy Issue (that is not result of an Equifax Issue)adverse determination with respect to such issue, and (2) all appearances before any court, the subject matter of which is a Certegy Issue includes such issue.
(that is not an Equifax Issue). h) The right to participate referred to in this subsection 6.1(c)(iv)(DSection 6.01(g)(iv) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Tax Allocation and Indemnification Agreement (Morrison Restaurants Inc/)
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one A Party shall promptly notify the other Party in writing (in no event later than 10 Business Days) (a “Notification”) upon receipt of written notice of any pending or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one threatened audits or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy assessments with respect to those issues that would result in Taxes for which such other Party (or any of its Affiliates) is liable under Section 6.8, or may give rise to an indemnification payment under Section 6.8. Failure to give such Notification shall not relieve the indemnifying party from Liability under this Section 6.8, except if and to the extent that the indemnifying party is actually prejudiced thereby. Subject to further provisions of this Section 6.8(g), each Party shall be entitled to conduct, direct, control and be responsible for the complete defense of any audit or administrative or court Proceeding relating to Taxes (a “Tax Claim”) for which it may be solely liable, and to employ counsel of its choice at its expense. FurthermoreBuyer shall be entitled to take control of the complete defense of any Tax Claim relating to Taxes for which Seller may be partially liable; provided that Seller, Equifax may at its sole cost and expense, shall have the right to participate in any Tax Controversy with respect Claim relating to Restructuring Taxes regardless for which it may be partially liable. If Buyer controls a Tax Claim relating to Taxes for which Seller may be partially liable, (A) Buyer shall control the Tax Claim diligently and in good faith, (B) Buyer shall keep Seller reasonably informed regarding the status of whether it has liability such Tax Claim, and (C) Buyer shall not, without considering in good xxxxx Xxxxxxx’ reasonable comments, settle, resolve, or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for abandon any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue)Claim. If Certegy does Buyer chooses not notify Equifax within such 30 day period that it objects to the proposed adjustmentcontrol a Tax Claim, then subsections 6.1(c)(ii(A) through 6.1(c)(v) below Seller shall not apply, and Equifax shall have exclusive assume control over all stages of the Tax Controversy, including full authority to determine whether Claim diligently and in what good faith, (B) Seller shall keep Buyer reasonably informed regarding the status of such Tax Claim, (C) Buyer shall have the right to participate in such Tax Claim at its sole cost and expense, and (D) Seller shall not, without considering in good faith Buyer’s reasonable comments, settle, resolve, or abandon any such Tax Claim. Any Tax liabilities imposed or assessed in connection with any Tax Claims shall be paid in the manner and within the period specified by applicable Law by the party responsible under applicable Law for making such payment and shall, for the avoidance of doubt, be subject to contest the indemnification provisions of this Section 6.8. Notwithstanding any other provision of this Section 6.8(g), each Party shall be entitled to take control of the complete defense of any Tax Claim for which both Parties are partially liable, and to employ counsel of its choice at its expense; provided that such Party shall take control of such Tax Claim within 45 Business Days of the earlier of (x) the date on which such Notification is provided or compromise (y) the issue, unless and until Certegy so notifies Equifaxdate such Notification is due pursuant to the first sentence of this Section 6.8(g).
(ii) If Certegy notifies Equifax To the extent any proceeding in respect of any Tax Claim involves a competent authority appeal under any Tax treaty or requires a payment in advance of challenging any Tax Claim (“Tax Challenge Prepayment”), Buyer acknowledges that it objects correlative relief may be available only if a Purchased Entity makes a payment to Seller or any of Seller’s Subsidiaries or another Purchased Entity (any such payment by a Purchased Entity, a “Correlative Relief Payment”) or makes a Tax Challenge Prepayment to the proposed adjustment relating applicable Taxing Authority. In the event such correlative relief is available only if a Purchased Entity makes a Correlative Relief Payment, (A) Buyer shall cause such Purchased Entity to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent use commercially reasonable efforts to the adjustment or compromise of make such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedingsCorrelative Relief Payment; provided, however, Equifax that if such Purchased Entity is required under applicable Law to withhold any Tax in respect of such Correlative Relief Payment, such Purchased Entity shall be responsible withhold such Tax, shall pay over the amount of such Tax to the applicable Taxing Authority, and shall deliver to Seller a receipt for the conduct such withheld Tax (or, if a receipt is not issued by such Taxing Authority, such other evidence of the audit, including matters pertaining payment of such Tax as is available to such Certegy Issue. Equifax Purchased Entity and reasonably acceptable to Seller), (B) Seller shall notify Certegy in advance pay, or cause to be paid, to Buyer or, at Seller’s option, the Purchased Entity making such Correlative Relief Payment, an amount equal to the amount of any conferences, meetingssuch Correlative Relief Payment received by Seller, and proceedings pertaining (C) Buyer and Seller shall treat the amount paid by Seller to Buyer, or the Purchased Entity making such Correlative Relief Payment, pursuant to clause (B) of this Section 6.8(g)(ii) as an adjustment to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) Purchase Price. In the event that Equifax receives challenging a notice of deficiency from Tax Claim requires a Tax Challenge Prepayment to be made, then the IRSParty that is liable for the Tax being challenged in such Tax Claim under Section 6.8 shall be required to make, or cause to be made (including by making the payment to the applicable Purchased Entity), such Tax Challenge Prepayment to the applicable Taxing Authority and shall promptly provide the other Party with evidence of such Tax Challenge Prepayment. If any Purchased Entity is entitled to any item of loss, deduction or credit as a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none result of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving making a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, 82 Correlative Relief Payment or a court of similar jurisdiction with respect to Taxes imposed by Tax Challenge Prepayment and any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action item results in a court refund in respect of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Purchased Entity’s Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact Liability with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If Pre-Closing Tax Period, such Purchased Entity shall pay to Seller the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct amount of the such Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax refund promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegythereof.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Purchase Agreement (Welbilt, Inc.)
Tax Controversies. (a) Each The Purchaser and the Vendors shall each use reasonable efforts to keep the other advised as to the status of Certegy Tax audits and Equifax litigation involving any direct, indirect or contingent Taxes which could give rise to a liability of the Vendors to the Purchaser under this Agreement for any Pre-Closing Tax Period (a "Tax Liability Issue"). Such efforts shall include attorney comfort letters provided to the Purchaser's independent auditors and discussions with the Vendors' attorneys representing the Acquired Subsidiaries as requested by the Purchaser. The Vendors agree to timely notify the Purchaser regarding any proposed written communication (i.e., communications not relating to inquiries or requests for information) by the Vendors to any such Taxing Authority with respect to a Tax Liability Issue to the extent that the issue would impact a Post-Closing Tax Period of the Purchaser or the Acquired Subsidiaries. The Purchaser shall have the right to consult with the Vendors regarding any response to such communications. 50 - 44 -
(b) The Vendors (or their designated agent) shall have full responsibility for and discretion in handling any tax controversy including, without limitation, an audit, an objection to Revenue Canada or any provincial tax authority, and litigation in the Tax Court of Canada or any other court of competent jurisdiction for any Pre-Closing Tax Period (a "Tax Proceeding"). The Purchaser or the Acquired Subsidiaries shall give the Vendors (and their designated agent) the ability to handle any tax controversy or Tax Proceeding whether by power of attorney or as otherwise required by the Taxing Authority. Unless the Vendors tender payment of any tax owed (which shall be deemed to be a reduction of the Purchase Price by the amount tendered), with penalty and interest, to the Purchaser or the Tax Authority, final settlement of any Tax Proceeding will require the written consent of the Purchaser. However, upon request by the Purchaser and with the written consent of the Vendors, the Purchaser at its own expense shall have full responsibility and discretion in handling, settling, or contesting handling any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible Proceeding for any Pre-Closing Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this AgreementPeriod.
(c) Equifax In the event that any one of the Acquired Subsidiaries is required or elects (with the prior written consent of the Vendors) to pay any Tax, file any bond or deposit any amount in connection with a Tax Proceeding (or, with the prior written consent of the Vendors, elect to pay any Canadian Tax in respect of a Pre-Closing Tax Period to which it may decide to object or otherwise contest), either Vendor shall notify Certegy promptly loan to the Purchaser no later than two Business Days before such payment is required to be made, without interest and until a final determination with respect to such Tax has occurred, the amount Laidxxx Xxx. loans to Allied pursuant to Section 12.5(iii) of the SPA in connection therewith, as and when received by Allied. Within two Business Days after the receipt by the Purchaser or any Acquired Subsidiary of a refund of or relating to any amount loaned to it by either Vendor (including any interest received by the Purchaser), the Purchaser shall pay (or shall cause such Acquired Subsidiary to pay) such refunded amount to such Vendor, net of any communication with Tax cost incurred by the IRS Purchaser or other Tax Authority relating in whole or in part to any Certegy Issuesuch Acquired Subsidiary as a result of such refund.
(id) Certegy shall have 30 days after receipt If the completion or settlement of such notice from Equifax within which to object to the proposed adjustment any Tax Proceeding relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a tax benefit for any Post-Closing Tax Period to the proposed adjustmentPurchaser, the Acquired Subsidiaries or any Affiliates, then subsections 6.1(c)(iithe Purchaser shall pay to the Vendors (as an increase in the Purchase Price) through 6.1(c)(vthe actual amount of such tax benefit realized by such persons as it relates to such Pre-Closing Tax Period, as and when received and on an after tax basis. No payment will be made under this paragraph for less than $50,000 per period or for a period of more than ten years. In this regard, Allied Parent agrees that neither it nor its applicable Subsidiaries shall waive any rights they may have under Section 12.5(v) below of the SPA. 51 - 45 -
(e) If the completion or settlement of any Tax Proceeding relating to a Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a tax liability for any Post-Closing Tax Period to the Purchaser, the Acquired Subsidiaries or any Affiliates, then the Vendors shall not applypay (as a reduction of the Purchase Price) to such persons the amount Laidxxx Xxx. pays to Allied or its Affiliates (excluding the Acquired Subsidiaries) pursuant to Section 12.5(v) of the SPA, as and when paid, and Equifax on a after-tax basis. In this regard, Allied Parent agrees that neither it nor its applicable Subsidiaries shall waive any rights they may have exclusive control over all stages under Section 12.5(v) of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies EquifaxSPA.
(iif) If Certegy notifies Equifax that it objects By written notice to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue)Vendors, then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy Purchaser shall have the right to attend all such instruct the Vendors to forego proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively respect to one or more Certegy Issues (none of items for which are Equifax Issues) and does not relate the Vendors may be liable to an Equifax Issue then:
(A) upon receiving indemnify the Purchaser. Such notice shall constitute a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination waiver of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination right of the deficiency pursuant Purchaser to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim indemnification for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court any Taxes arising out of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible item for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, period or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifaxperiods involved, but shall cooperate with Equifax not otherwise waive any rights of the Vendors to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance any refund of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issuedeposit under Section 12.4(c).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Tax Controversies. (a) Each of Certegy PSI and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (ia) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (iib) one or more issues that would result in Taxes for which Certegy PSI is liable under this Agreement, then Equifax and Certegy PSI shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy PSI promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy PSI Issue.
(i) Certegy PSI shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy PSI Issue (that is not an Equifax Issue). If Certegy PSI does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy PSI so notifies Equifax.
(ii) If Certegy PSI notifies Equifax that it objects to the proposed adjustment relating to a Certegy PSI Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy PSI Issue without the consent of CertegyPSI, but shall cooperate with Certegy PSI to resolve the Certegy PSI Issue on a basis acceptable to CertegyPSI. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy PSI Issue. Equifax shall notify Certegy PSI in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy PSI shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy PSI Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy PSI shall assume the conduct of all further proceedings, with counsel selected by it, at CertegyPSI's sole expense, insofar as the proceedings relate to a Certegy PSI Issue (that is not an Equifax Issue), and thereafter Certegy PSI and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy PSI Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy PSI Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from CertegyPSI, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at CertegyPSI's sole expense); or
(B) If (1) Certegy PSI does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A6.1(g)(i) hereof, (2) Certegy PSI requests that Equifax file a claim for refund, and (3) Certegy PSI provides Equifax with sufficient funds to pay the deficiency relating to the Certegy PSI Issue, then Equifax (at CertegyPSI's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy PSI Issue, then Certegy PSI shall have the right to cause Equifax to appeal from such adverse determination at CertegyPSI's sole expense.
(D) Certegy PSI and its representatives, at CertegyPSI's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy PSI Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy PSI Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy PSI Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy PSI Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy PSI Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy PSI Issue, but Equifax shall use reasonable efforts to involve Certegy PSI in the conduct of the Tax Controversy insofar as it relates to any Certegy PSI Issue. Equifax shall notify Certegy PSI in advance of any such proceedings and, at its own expense, Certegy may PSI shall attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy PSI Issue. Certegy PSI shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy PSI Issue.
(d) Certegy PSI shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy PSI within which to object to the proposed adjustment relating to an a Equifax Issue (that is not a Certegy an PSI Issue). If Equifax does not notify Certegy PSI within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy PSI shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies CertegyPSI.
(ii) If Equifax notifies Certegy PSI that it objects to the proposed adjustment relating to an a Equifax Issue (that is not a Certegy an PSI Issue), then Certegy PSI shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy PSI shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy PSI shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an a Equifax Issue (that is not a Certegy an PSI Issue), and thereafter Certegy PSI and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy PSI receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy PSI Issues) and does not relate to a Certegy an PSI Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy PSI shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy PSI to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A6.1(g)(i) hereof, (2) Equifax requests that Certegy PSI file a claim for refund, and (3) Equifax provides Certegy PSI with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy PSI (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy PSI to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an a Equifax Issue (that is not a Certegy an PSI Issue), and (2) all appearances before any court, the subject matter of which is an a Equifax Issue (that is not a Certegy an PSI Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an a Equifax Issue (that is not a Certegy an PSI Issue).
(v) If the proposed adjustment relating to an a Equifax Issue is also a Certegy an PSI Issue (or if the proposed adjustment relates solely to a Certegy an PSI Issue that is not an Equifax Issue), then Certegy PSI shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy PSI shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy PSI shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may shall attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy PSI shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Tax Sharing and Indemnification Agreement (Equifax Ps Inc)
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one The Buyer Parties shall promptly notify the Sellers upon receipt by a Buyer Parties or more issues any of its Affiliates (including the Acquired Retail Group Members after the Closing Date) of written notice of any Tax Matter (provided, that would result in Taxes for which Equifax is liable under the failure to provide prompt notice shall not affect Sellers’ obligations hereunder except and solely to the extent of any actual prejudice to Sellers resulting from such delay). Subject to the provisions of this Agreement Section 6.06(c)(i) and to Section 6.06(c)(ii), and to the extent permitted by applicable Law, the Sellers shall have the authority (iiand the Buyer Parties shall cause the Acquired Retail Group Members to provide the Sellers’ tax advisors with the appropriate powers of attorney) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with to represent the interests of each other to allow each party to conduct of the Tax Controversy Acquired Retail Group Members with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy Matter for any Pre-Closing Tax Period other than an Overlap Period before the IRS, any other Taxing Authority, any other Governmental Authority or any court and shall have the sole right to control the defense, compromise or other resolution of any Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, a Tax Matter. The Sellers shall keep the Buyer Parties fully and timely informed with respect to Restructuring Taxes regardless the commencement, status and nature of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known Matter described above. The Sellers shall, in good faith, allow the Buyer Parties to make comments to the party) to resist any deficiency assertions by any Tax Authority regardless Sellers or the Sellers’ tax advisors regarding the conduct of which party is ultimately responsible for or positions taken in any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment proceeding relating to a Certegy Issue Tax Matter for any period other than an Overlap Period and if such Tax Matter relates to a Tax Return other than a consolidated, combined or unitary Tax Return, the Sellers shall afford the Buyer Parties and its counsel the right, at the Buyer Parties’ own expense, to participate fully in all aspects of the prosecution or defense of such Income Tax Matter. The Sellers shall not settle any Tax Matter without the prior written consent of the Buyer Parties (that is which consent shall not an Equifax Issue)be unreasonably withheld or delayed) if such settlement would materially increase the past, present or future Tax liability of the Buyer Parties or any of their Affiliates (other than the Acquired Retail Group Members) or any Tax liability of the Acquired Retail Group Members for any taxable period or portion thereof ending after the Closing Date. If Certegy does the Sellers do not notify Equifax within promptly assume and pursue diligently the defense of any Tax Matter described herein, the Buyer Parties may defend such 30 day period that Tax Matter in such manner as it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversydeems appropriate, including full authority but not limited to determine whether and settling such Tax Matter, without in what manner any way limiting the Buyer Parties’ rights to contest or compromise the issue, unless and until Certegy so notifies Equifaxindemnification hereunder.
(ii) If Certegy notifies Equifax that it objects The Buyer Parties shall have the sole right to control any audit or examination by any Taxing Authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of, or relating to, the income, assets or operations of the Acquired Retail Group Members for any Overlap Period and for all taxable periods ending after the Closing Date. With respect to any matter described in the preceding sentence relating to an Overlap Period, the Buyer Parties shall (i) keep the Sellers fully and timely informed with respect to such proceedings (by provision of information to the proposed adjustment relating to a Certegy Issue (that is not an Equifax IssueSellers), then Equifax shall not thereafter consent (ii) in good faith, allow the Seller to make comments to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for Buyer Parties regarding the conduct of the audit, including matters pertaining to or positions taken in any such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, proceeding and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon not enter into any settlement or compromise without the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a prior written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination consent of the deficiencySellers, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below consent shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest unreasonably be withheld or compromise the issue, unless and until Equifax so notifies Certegydelayed.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Affirmative Insurance Holdings Inc)
Tax Controversies. A Party shall promptly notify the other Party in writing (ain no event later than 20 Business Days) Each (a “Notification”) upon receipt of Certegy and Equifax shall have full responsibility and discretion in handling, settling, written notice of any pending or contesting any Tax Controversy involving a Tax threatened audits or assessments with respect to Taxes for which such other Party (or any of its Affiliates or Subsidiaries, as applicable) is liable under Section 6.9 or may give rise to an indemnification payment under Section 6.9(a). Failure to give such Notification shall not relieve the indemnifying party from Liability under this Section 6.9, except if and to the extent the indemnifying party is liable pursuant actually prejudiced thereby. Subject to Article II further provisions of this AgreementSection 6.9(f), each Party shall be entitled to control and be solely responsible for the defense of any tax audit or administrative or court Proceeding (a “Tax Claim”) relating to Taxes for which it may be solely liable, and to employ counsel of its choice at its expense. Arion shall be entitled to take control of the defense of any Tax Claim relating to Taxes for which it may be partially liable; provided that Sphinx, at its sole cost and expense, shall have the right to participate in any Tax Claim relating to Taxes for which it may be partially liable. If Arion controls a Tax Controversy proceeding involves both Claim relating to Taxes for which Sphinx may be partially liable, (i) one Arion shall conduct the defense of the Tax Claim diligently and in good faith, (ii) Arion shall keep Sphinx informed regarding the status of such Tax Claim and (iii) Arion shall not settle, resolve, or more issues that abandon any such Tax Claim without Sphinx’s prior written consent (not to be unreasonably withheld, conditioned or delayed) to the extent such settlement, resolution or abandonment would result in increase Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy Sphinx is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does Arion chooses not notify Equifax within such 30 day period that it objects to the proposed adjustmentcontrol a Tax Claim, then subsections 6.1(c)(ii(A) through 6.1(c)(v) below Sphinx shall not apply, and Equifax shall have exclusive assume control over all stages of the Tax Controversy, including full authority to determine whether Claim and conduct the defense of the Tax Claim diligently and in what manner to contest or compromise good faith, (B) Sphinx shall keep Arion informed regarding the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise status of such Certegy Issue without the consent of CertegyTax Claim, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy (C) Arion shall have the right to attend all participate in such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, Claim at Certegy's its sole cost and expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representativesSphinx shall not settle, at Certegy's sole expenseresolve, shall or abandon any such Tax Claim without Arion’s prior written consent (not to be entitled unreasonably withheld, conditioned or delayed) to the extent permitted by law to participate in (1) all conferencessuch settlement, meetings, resolution or proceedings with any Tax Authority, the subject matter of abandonment would increase Taxes for which Arion is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue)liable under this Agreement. The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expenseThis Section 6.9(f) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled govern to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings it would otherwise be inconsistent with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue)Section 9.3.
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Purchase Agreement (Symantec Corp)
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one Curaleaf Common Parent shall deliver a written notice to the Seller Representative promptly following any demand, claim or more issues that would result in notice of commencement of a claim, proposed adjustment, assessment, audit, examination or other administrative or court proceeding with respect to Taxes of the Acquired Companies for which Equifax is liable under the Participating Securityholders may have an indemnification obligation pursuant to this Agreement (a “Tax Claim”) and shall describe in reasonable detail the facts constituting the basis for such Tax Claim, the nature of the relief sought, and the amount of the claimed Losses (ii) one including Taxes), if any (such notice, the “Tax Claim Notice”); provided, however, that the failure or more issues that would result in Taxes for which Certegy is liable under delay to so notify the Seller Representative shall not relieve the Participating Securityholders of any claim of indemnification pursuant to this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known except to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with extent that the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies EquifaxParticipating Securityholders are materially prejudiced thereby.
(ii) If Certegy notifies Equifax With respect to Tax Claims that it objects relate solely to a Pre-Closing Tax Period, the Seller Representative may elect to assume and control the defense of such Tax Claim (at the sole cost and expense of the Participating Securityholders) by written notice to Curaleaf Common Parent within thirty (30) days after delivery by Curaleaf Common Parent to the Seller Representative of the Tax Claim Notice. If the Seller Representative elects to assume the defense of any Tax Claim, (A) the Seller Representative shall keep Curaleaf Common Parent reasonably informed of all material developments and events relating to such Tax Claim, including by providing Curaleaf Common Parent with copies of all material correspondence and other material communications with respect to the Tax Claim, (B) the Seller Representative shall defend against such proposed adjustment relating to a Certegy Issue diligently and in good faith, (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy C) Curaleaf Common Parent shall have the right to attend all participate in (but not control) the defense of such proceedings Tax Claim (including participating in any discussions with any the applicable Governmental Authority regarding such Tax AuthorityClaims) at Curaleaf Common Parent’s sole cost and expense and (D) the Seller Representative shall not settle or compromise such Tax Claim without Curaleaf Common Parent’s consent, which consent will not be unreasonably withheld, conditioned or delayed. If the subject matter of Seller Representative does not assume pursuant to this clause (ii) or the Seller Representative fails to defend against such Tax Claim diligently and in good faith after notice from Curaleaf Common Parent, which is or includes not cured within thirty (30) days, Curaleaf Common Parent may, upon notice to Seller Representative, elect to control such Certegy IssueTax Claim at the sole cost and expense of the Participating Securityholders; provided that (A) Curaleaf Common Parent shall keep the Seller Representative reasonably informed of all material developments and events relating to such Tax Claim, including by providing the Seller Representative with copies of all material correspondence and other material communications with respect to the Tax Claim, and (B) Curaleaf Common Parent shall have the right to settle such Tax Claim at any time in its sole discretion.
(iii) Upon In connection with any Tax Claim relating to a Straddle Period, such Tax Claim shall be controlled by Curaleaf Common Parent; provided that (A) Curaleaf Common Parent shall keep the issuance Seller Representative reasonably informed of a notice all material developments and events relating to such Tax Claim, including by providing the Seller Representative with copies of all material correspondence and other material communications with respect to the Tax Claim, (B) the Seller Representative shall have the right to participate in (but not control) the defense of such Tax Claim (including participating in any discussions with the applicable Governmental Authority regarding such Tax Claims) at the Participating Stockholder’s sole cost and expense, and (C) Curaleaf Common Parent shall defend against such proposed adjustment diligently and in good faith, and (D) Curaleaf Common Parent shall not settle or similar stage compromise such Tax Claim without the prior written consent of the Seller Representative, such consent not to be unreasonably withheld, conditioned or delayed. Curaleaf Common Parent shall not be required to appeal an adverse decision of an administrative agency or court of competent jurisdiction with respect to such Tax Claim. The costs and expenses of defending against such Tax Claim shall be borne by the Participating Secuirtyholders (in proportion to their respective Pro Rata Portions), on the one hand, and Curaleaf Common Parent, on the other hand, in the proceedingssame proportion that the Tax for the portion of the Straddle Period through and including the Closing Date bears to the Tax for the portion of the Straddle Period beginning after the Closing Date. If Curaleaf Common Parent fails to defend against such Tax Claim diligently and in good faith which is not cured within thirty (30) days after written notice from the Seller Representative, Certegy the Seller Representative may, upon written notice to Curaleaf Common Parent, elect to control such Tax Claim; provided that (A) the Seller Representative shall assume the conduct keep Curaleaf Common Parent reasonably informed of all further proceedingsmaterial developments and events relating to such Tax Claim, including by providing Curaleaf Common Parent with counsel selected by it, at Certegy's sole expense, insofar as copies of all material correspondence and other material communications with respect to the proceedings relate to a Certegy Issue (that is not an Equifax Issue)Tax Claim, and thereafter Certegy and Equifax (B) the Seller Representative shall jointly be responsible for have the conduct of proceedings right to contest settle such Certegy IssueTax Claim at any time in its sole discretion.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other The procedures for all Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax IssuesClaims shall be governed by this Section 7.2(e) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing the provisions of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax Section 10.4 shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled apply to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings not inconsistent with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax IssueSection 7.2(e).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Merger Agreement
Tax Controversies. (a) Each After the Closing, the Buyer or the Company shall notify the Sellers Representative of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a audits, Tax disputes or administrative, judicial or other proceedings (“Tax Controversies”) that relate to any Taxes of the Transferred Companies for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is the Sellers may be liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy relate to a Pre-Closing Tax Period within 30 days following the Buyer’s or the Company’s or the Blocker Corporation’s receipt of the written claim from any Taxing Authority; provided that any failure to provide such notification shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in not have any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or impact on Sellers’ indemnification obligations with respect to Seller Taxes or Blocker Corporation Parent Taxes except to the extent that the Sellers are materially prejudiced by such Taxes under this Agreementfailure.
(b) The party responsible for After the Closing, the Sellers Representative shall have the right to control any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known Controversies that relate to any Taxes of the party) to resist any deficiency assertions by any Tax Authority regardless of Transferred Companies for which party is ultimately responsible for any such Tax the Sellers may be liable under this Agreement.
(c) Equifax shall notify Certegy promptly Agreement or that relate solely to a Pre-Closing Tax Period, to employ counsel and other advisors of any communication with its choice at the IRS or other Tax Authority relating in whole or in part expense of the Sellers and Warrant Holders and to any Certegy Issue.
(i) Certegy shall have 30 days after receipt control the conduct of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest settlement or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedingsother disposition thereof; provided, however, Equifax that Buyer shall have the right to participate in (but not control) such Tax Controversy. Buyer’s right to participate shall include, but not be responsible for the conduct of the auditlimited to, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit andhiring, at its own expense, Certegy shall have its own counsel and the right to review on any written submission in respect of such Tax Controversy (prior to submission) and to attend any hearing, conference, meeting or call regarding such Tax Controversy. Sellers Representative may pursue or forego any and all such proceedings administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect to such Tax AuthorityControversies, and may initiate any claim for refund or direct the Company or any Blocker Corporation to file any amended return (subject matter to the Buyer’s consent as set forth in Section 8.1 with respect to Pre-Closing Tax Returns), and the Company and each Blocker Corporation shall promptly file any such amended returns. Sellers Representative shall not settle or resolve any Tax Controversy without the prior written consent of the Buyer, which is consent shall not be unreasonably conditioned, withheld or includes delayed (for the avoidance of doubt, Buyer shall not be entitled to withhold consent if such Certegy IssueTax Controversy does not adversely affect the Buyer or the Transferred Companies in any post-Closing tax period).
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(ivc) In the event that Equifax receives a notice of deficiency from after the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and Closing the Sellers Representative does not relate exercise its right to an Equifax Issue then:
(A) upon receiving control a written request from CertegyTax Controversy pursuant to this Section, given no later than a date reasonably necessary after the Closing, the Buyer shall control such Tax Controversy at its expense and in its sole and absolute discretion. Buyer’s control of any Tax Controversy pursuant to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction this provision shall not have any impact on Sellers’ indemnification obligations with respect to Seller Taxes, Elevation Blocker Corporation Parent Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refundor FTV Blocker Corporation Parent Taxes.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Tax Controversies. ABRY Partners is designated the “Tax Matters Partner” (aas defined in Code Section 6231) for the Company, and is authorized to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith; provided that the Tax Matters Partner may be replaced by action of a Majority of the Members. Each of Certegy Unitholder and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant Option Holder agrees to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy Matters Partner and to do or refrain from doing any or all things reasonably requested by the Tax Matters Partner with respect to those issues the conduct of such proceedings. The Tax Matters Partner shall take such action as may be necessary to cause OHCP to become a “notice partner” within the meaning of Section 6223 of the Code and shall inform OHCP of all significant matters that would result may come to its attention in Taxes its capacity as Tax Matters Partner by giving notice thereof within ten days after becoming aware thereof and, within such time, shall forward to each Oak Hill Purchaser copies of all significant written communications it may receive in such capacity. Subject to the foregoing proviso, the Tax Matters Partner will have sole discretion to determine whether the Company (either in its own behalf or on behalf of the Unitholders and Option Holders) will contest or continue to contest any tax deficiencies assessed or proposed to be assessed by any taxing authority. The Tax Matters Partner shall not settle or compromise any tax audit of the Company or bind the Company or any Oak Hill Purchaser to any election or extension of a statute of limitations without the prior consent of OHCP. Any deficiency for which such party is liable. Furthermoretaxes imposed on any Unitholder or Option Holder (including penalties, Equifax may participate in any Tax Controversy with respect additions to Restructuring Taxes regardless of whether it has liability tax or indemnification obligations interest imposed with respect to such Taxes taxes) will be paid by such Unitholder or Option Holder, and if required to be paid (and actually paid) by the Company, will be recoverable from such Unitholder or Option Holder as provided in Section 7.5 hereof. The Company shall reimburse the Tax Matters Partner for any and all reasonable expenses (including legal and accounting fees) incurred by the Tax Matters Partner in connection with the fulfillment of its duties under this Agreement.
(b) The party responsible for Section 9.5. This provision is not intended to authorize the Tax Matters Partner to take any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known action left to the party) to resist any deficiency assertions by any Tax Authority regardless determination of which party is ultimately responsible for any such Tax a partner under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) Sections 6222 through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages 6231 of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies EquifaxCode.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Atlantic Broadband Management, LLC)
Tax Controversies. (ai) Each Purchaser and Seller shall each use reasonable efforts to keep the other advised as to the status of Certegy Tax audits and Equifax litigation involving any direct, indirect or contingent Taxes which could give rise to a liability of the Seller Group to Purchaser under this Agreement for any pre-closing period (a "Tax Liability Issue"). Seller agrees to timely notify Purchaser regarding any proposed written communication (i.e., communications not relating to inquiries or requests for information) by Seller to any such Taxing Authority with respect to a Tax Liability Issue to the extent that the issue would impact a post-closing period of Purchaser or the Acquired Subsidiaries. Purchaser shall have the right to consult with Seller regarding any response to such communications.
(ii) Seller shall have full responsibility for and discretion in handling any Tax Controversy including, without limitation, an audit, a protest to the appeals division of the IRS, or similar state or local appellate division, and litigation in the U.S. Tax Court, or any other court of competent jurisdiction (a "Tax Proceeding") for any pre-closing period. Purchaser or the Acquired Subsidiaries shall give the Seller Group the ability to handle any Tax Controversy whether by power of attorney or as otherwise required by the Taxing Authority. However, upon request by Purchaser and with the consent of Seller, Purchaser at its own expense shall have full responsibility and discretion in handling, settling, or contesting handling any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible Proceeding for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy IssuePre-closing tax period.
(iii) Upon In the issuance event that any one of the Acquired Subsidiaries is required or elects to pay any Tax, file any bond or deposit any amount in connection with a Tax Proceeding, Seller shall loan to Purchaser no later than three (3) Business Days before such payment is required to be made, without interest and until a final determination with respect to such Tax has occurred, one hundred percent of the amount to be paid or deposited by Purchaser. Within three (3) Business Days of the receipt by Purchaser of a notice refund of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected any amount loaned to it by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue Seller (that is not an Equifax Issueincluding any interest received by Purchaser), Purchaser shall pay such refunded amount to Seller net of any Tax cost incurred by Purchaser and thereafter Certegy and Equifax shall jointly be responsible for the conduct its Affiliates as a result of proceedings to contest such Certegy Issuerefund.
(iv) In If the event that Equifax receives a notice completion or settlement of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency Proceeding relating to a Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a Tax Benefit for any Post-Closing Tax Period to Purchaser, the Certegy IssueAcquired Subsidiaries and any Affiliates, then Equifax (at Certegy's sole expense) such persons shall file pay to Seller the actual amount of such Tax Benefit realized by such persons as it relates to such Pre-- Closing Tax Period as and when received on an after-tax basis. No payment will be made under this paragraph for less than $50,000 per period or for a claim for refund thereof and, if the claim is denied, bring an action in a court period of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue)more than ten years.
(v) If the proposed adjustment completion or settlement of any Tax Proceeding relating to a Certegy Issue is also an Equifax Issue (Pre-Closing Tax Period, tax controversy or if amended Tax Return gives rise to a tax liability for any Post-Closing Tax Period to Purchaser, the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue)Acquired Subsidiaries and any Affiliates, then Equifax Seller shall pay to such persons the actual amount of such tax liability on an after-tax basis as and when paid. No payment will be fully responsible made under this paragraph for the conduct less than $50,000 per period or for a period of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issuemore than ten years.
(dvi) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part By written notice to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustmentSeller, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax Purchaser shall have the right to attend all such instruct Seller to forego proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively respect to one or more Equifax Issues (none items for which Seller may be liable to indemnify Purchaser. Such notice shall constitute a waiver of which are Certegy Issues) and does the right of Purchaser to indemnification for any Taxes arising out of such item for the period or periods involved, but shall not relate otherwise waive any rights of Seller to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing any refund of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issuedeposit under Section 12.4(iii).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Stock Purchase Agreement (Rollins Environmental Services Inc)
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting Notwithstanding any Tax Controversy involving a Tax for which such party is liable pursuant to Article II other provision of this Agreement. If a Tax Controversy proceeding involves both , this Section 8.12 (iand not Section 8.3, other than as expressly set forth therein) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy control with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy Matters with respect to Restructuring Taxes regardless any Pre-Closing Tax Period and Straddle Period. Buyer shall notify Sellers’ Representative in writing within five days of whether it has liability receipt by Buyer or indemnification obligations the Company of written notice of any Tax Matters from any Taxing Authority. Sellers’ Representative may, at Sellers’ expense, participate in and, upon written notice to Buyer within 10 days of receiving notice of a Tax Matter, assume the defense of any such Tax Matter to the extent such Tax Matter is solely with respect to a Pre-Closing Tax Period that does not include a Straddle Period. If Sellers’ Representative assumes such defense, then Sellers’ Representative shall have the authority, with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known Matter, to represent the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages interests of the Tax Controversy, including full authority to determine whether Company before the relevant Taxing Authority and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy Sellers’s Representative shall have the right to attend all control the defense, compromise or other resolution of any such proceedings with Tax Matter, subject to the limitations contained herein, including responding to inquiries, and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax Authoritydeficiency or other adjustment of Taxes of, or relating to, such Tax Matter. If Sellers’ Representative assumes the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance defense of a notice Tax Matter, Sellers’ Representative shall (i) not enter into any settlement of, otherwise compromise or abandon any such Tax Matter without the prior written consent of proposed adjustment Buyer, which consent shall not be unreasonably withheld, conditioned or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereofdelayed, (2ii) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination keep Buyer duly informed with respect to the Certegy Issuecommencement, then Certegy shall have the right status and nature of any such Tax Matter and timely provide Buyer with copies of all correspondence, notices and other written materials received from any Taxing Authority with respect to cause Equifax such Tax Matter and (iii) consult in good faith with Buyer with respect to appeal from any issue relating to such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled Tax Matter. With respect to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact Matter with respect to a Certegy Issue (that is Pre-Closing Tax Period for which Sellers’ Representative has not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (assumed such defense or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue)for any Straddle Period, then Equifax Buyer shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt not enter into any settlement of, otherwise compromise or abandon any such Tax Matter without the prior written consent of such notice from Certegy within Sellers’ Representative, which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below consent shall not applybe unreasonably withheld, and Certegy shall have exclusive control over all stages of the Tax Controversyconditioned or delayed, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination keep Sellers’s Representative duly informed with respect to the Equifax Issuecommencement, then Equifax shall have the right to cause Certegy to appeal status and nature of any such Tax Matter and timely provide Sellers’ Representative with copies of all correspondence, notices and other written materials received from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact Taxing Authority with respect to an Equifax Issue such Tax Matter and (that is not a Certegy Issue).
(viii) If the proposed adjustment consult in good faith with Sellers’s Representative with respect to any issue relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the such Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax IssueMatter.
Appears in 1 contract
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one A Party shall promptly notify the other Party in writing (in no event later than 10 Business Days) (a “Notification”) upon receipt of written notice of any pending or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one threatened audits or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy assessments with respect to those issues that would result in Taxes for which such other Party (or any of its Affiliates) is liable under Section 6.8, or may give rise to an indemnification payment under Section 6.8. Failure to give such Notification shall not relieve the indemnifying party from Liability under this Section 6.8, except if and to the extent that the indemnifying party is actually prejudiced thereby. Subject to further provisions of this Section 6.8(g), each Party shall be entitled to conduct, direct, control and be responsible for the complete defense of any audit or administrative or court Proceeding relating to Taxes (a “Tax Claim”) for which it may be solely liable, and to employ counsel of its choice at its expense. FurthermoreBuyer shall be entitled to take control of the complete defense of any Tax Claim relating to Taxes for which Seller may be partially liable; provided that Seller, Equifax may at its sole cost and expense, shall have the right to participate in any Tax Controversy with respect Claim relating to Restructuring Taxes regardless for which it may be partially liable. If Buyer controls a Tax Claim relating to Taxes for which Seller may be partially liable, (A) Buyer shall control the Tax Claim diligently and in good faith, (B) Buyer shall keep Seller reasonably informed regarding the status of whether it has liability such Tax Claim, and (C) Buyer shall not, without considering in good xxxxx Xxxxxxx’ reasonable comments, settle, resolve, or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for abandon any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue)Claim. If Certegy does Buyer chooses not notify Equifax within such 30 day period that it objects to the proposed adjustmentcontrol a Tax Claim, then subsections 6.1(c)(ii(A) through 6.1(c)(v) below Seller shall not apply, and Equifax shall have exclusive assume control over all stages of the Tax Controversy, including full authority to determine whether Claim diligently and in what good faith, (B) Seller shall keep Buyer reasonably informed regarding the status of such Tax Claim, (C) Buyer shall have the right to participate in such Tax Claim at its sole cost and expense, and (D) Seller shall not, without considering in good faith Buyer’s reasonable comments, settle, resolve, or abandon any such Tax Claim. Any Tax liabilities imposed or assessed in connection with any Tax Claims shall be paid in the manner and within the period specified by applicable Law by the party responsible under applicable Law for making such payment and shall, for the avoidance of doubt, be subject to contest the indemnification provisions of this Section 6.8. Notwithstanding any other provision of this Section 6.8(g), each Party shall be entitled to take control of the complete defense of any Tax Claim for which both Parties are partially liable, and to employ counsel of its choice at its expense; provided that such Party shall take control of such Tax Claim within 45 Business Days of the earlier of (x) the date on which such Notification is provided or compromise (y) the issue, unless and until Certegy so notifies Equifaxdate such Notification is due pursuant to the first sentence of this Section 6.8(g).
(ii) If Certegy notifies Equifax To the extent any proceeding in respect of any Tax Claim involves a competent authority appeal under any Tax treaty or requires a payment in advance of challenging any Tax Claim (“Tax Challenge Prepayment”), Buyer acknowledges that it objects correlative relief may be available only if a Purchased Entity makes a payment to Seller or any of Seller’s Subsidiaries or another Purchased Entity (any such payment by a Purchased Entity, a “Correlative Relief Payment”) or makes a Tax Challenge Prepayment to the proposed adjustment relating applicable Taxing Authority. In the event such correlative relief is available only if a Purchased Entity makes a Correlative Relief Payment, (A) Buyer shall cause such Purchased Entity to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent use commercially reasonable efforts to the adjustment or compromise of make such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedingsCorrelative Relief Payment; provided, however, Equifax that if such Purchased Entity is required under applicable Law to withhold any Tax in respect of such Correlative Relief Payment, such Purchased Entity shall be responsible withhold such Tax, shall pay over the amount of such Tax to the applicable Taxing Authority, and shall deliver to Seller a receipt for the conduct such withheld Tax (or, if a receipt is not issued by such Taxing Authority, such other evidence of the audit, including matters pertaining payment of such Tax as is available to such Certegy Issue. Equifax Purchased Entity and reasonably acceptable to Seller), (B) Seller shall notify Certegy in advance pay, or cause to be paid, to Buyer or, at Seller’s option, the Purchased Entity making such Correlative Relief Payment, an amount equal to the amount of any conferences, meetingssuch Correlative Relief Payment received by Seller, and proceedings pertaining (C) Buyer and Seller shall treat the amount paid by Seller to Buyer, or the Purchased Entity making such Correlative Relief Payment, pursuant to clause (B) of this Section 6.8(g)(ii) as an adjustment to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) Purchase Price. In the event that Equifax receives challenging a notice of deficiency from Tax Claim requires a Tax Challenge Prepayment to be made, then the IRSParty that is liable for the Tax being challenged in such Tax Claim under Section 6.8 shall be required to make, or cause to be made (including by making the payment to the applicable Purchased Entity), such Tax Challenge Prepayment to the applicable Taxing Authority and shall promptly provide the other Party with evidence of such Tax Challenge Prepayment. If any Purchased Entity is entitled to any item of loss, deduction or credit as a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none result of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving making a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, Correlative Relief Payment or a court of similar jurisdiction with respect to Taxes imposed by Tax Challenge Prepayment and any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action item results in a court refund in respect of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Purchased Entity’s Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact Liability with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If Pre-Closing Tax Period, such Purchased Entity shall pay to Seller the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct amount of the such Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax refund promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegythereof.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Purchase Agreement (PENTAIR PLC)
Tax Controversies. (a) Each The Purchaser and the Vendors shall each use reasonable efforts to keep the other advised as to the status of Certegy Tax audits and Equifax litigation involving any direct, indirect or contingent Taxes which could give rise to a liability of the Vendors to the Purchaser under this Agreement for any Pre-Closing Tax Period (a "Tax Liability Issue"). Such efforts shall include attorney comfort letters provided to the Purchaser's independent auditors and discussions with the Vendors' attorneys representing the Acquired Subsidiaries as requested by the Purchaser. The Vendors agree to timely notify the Purchaser regarding any proposed written communication (i.e., communications not relating to inquiries or requests for information) by the Vendors to any such Taxing Authority with respect to a Tax Liability Issue to the extent that the issue would impact a Post-Closing Tax Period 50 - 43 - of the Purchaser or the Acquired Subsidiaries. The Purchaser shall have the right to consult with the Vendors regarding any response to such communications.
(b) The Vendors (or their designated agent) shall have full responsibility for and discretion in handling any tax controversy including, without limitation, an audit, an objection to Revenue Canada or any provincial tax authority, and litigation in the Tax Court of Canada or any other court of competent jurisdiction for any Pre-Closing Tax Period (a "Tax Proceeding"). The Purchaser or the Acquired Subsidiaries shall give the Vendors (and their designated agent) the ability to handle any tax controversy or Tax Proceeding whether by power of attorney or as otherwise required by the Taxing Authority. Unless the Vendors tender payment of any tax owed (which shall be deemed to be a reduction of the Purchase Price by the amount tendered), with penalty and interest, to the Purchaser or the Tax Authority, final settlement of any Tax Proceeding will require the written consent of the Purchaser. However, upon request by the Purchaser and with the written consent of the Vendors, the Purchaser at its own expense shall have full responsibility and discretion in handling, settling, or contesting handling any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible Proceeding for any Pre-Closing Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this AgreementPeriod.
(c) Equifax In the event that any one of the Acquired Subsidiaries is required or elects (with the prior written consent of the Vendors) to pay any Tax, file any bond or deposit any amount in connection with a Tax Proceeding (or, with the prior written consent of the Vendors, elect to pay any Canadian Tax in respect of a Pre-Closing Tax Period to which it may decide to object or otherwise contest), either Vendor shall notify Certegy promptly loan to the Purchaser no later than two Business Days before such payment is required to be made, without interest and until a final determination with respect to such Tax has occurred, the amount Laidxxx Xxx. loans to Allied pursuant to Section 12.5(iii) of the SPA in connection therewith, as and when received by Allied. Within two Business Days after the receipt by the Purchaser or any Acquired Subsidiary of a refund of or relating to any amount loaned to it by either Vendor (including any interest received by the Purchaser), the Purchaser shall pay (or shall cause such Acquired Subsidiary to pay) such refunded amount to such Vendor, net of any communication with Tax cost incurred by the IRS Purchaser or other Tax Authority relating in whole or in part to any Certegy Issuesuch Acquired Subsidiary as a result of such refund.
(id) Certegy shall have 30 days after receipt If the completion or settlement of such notice from Equifax within which to object to the proposed adjustment any Tax Proceeding relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a tax benefit for any Post-Closing Tax Period to the proposed adjustmentPurchaser, the Acquired Subsidiaries or any Affiliates, then subsections 6.1(c)(iithe Purchaser shall pay to the Vendors (as an increase in the Purchase Price) through 6.1(c)(vthe actual amount of such tax benefit realized by such persons as it relates to such Pre-Closing Tax Period, as and when received and on an after tax basis. No payment will be made under this paragraph for less than $50,000 per period or for a period of more than ten years. In this regard, Allied Parent agrees 51 - 44 - that neither it nor its applicable Subsidiaries shall waive any rights they may have under Section 12.5(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies EquifaxSPA.
(iie) If Certegy notifies Equifax that it objects to the proposed adjustment completion or settlement of any Tax Proceeding relating to a Certegy Issue (that is not an Equifax Issue)Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a tax liability for any Post-Closing Tax Period to the Purchaser, the Acquired Subsidiaries or any Affiliates, then Equifax the Vendors shall not thereafter consent pay (as a reduction of the Purchase Price) to such persons the amount Laidxxx Xxx. pays to Allied or its Affiliates (excluding the Acquired Subsidiaries) pursuant to Section 12.5(v) of the SPA, as and when paid, and on a after-tax basis. In this regard, Allied Parent agrees that neither it nor its applicable Subsidiaries shall waive any rights they may have under Section 12.5(v) of the SPA.
(f) By written notice to the adjustment or compromise of such Certegy Issue without Vendors, the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy Purchaser shall have the right to attend all such instruct the Vendors to forego proceedings with any Tax Authority, the subject matter of which is or includes such Certegy Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue (that is not an Equifax Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Certegy Issue.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively respect to one or more Certegy Issues (none of items for which are Equifax Issues) and does not relate the Vendors may be liable to an Equifax Issue then:
(A) upon receiving indemnify the Purchaser. Such notice shall constitute a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination waiver of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination right of the deficiency pursuant Purchaser to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim indemnification for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court any Taxes arising out of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible item for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, period or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifaxperiods involved, but shall cooperate with Equifax not otherwise waive any rights of the Vendors to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance any refund of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issuedeposit under Section 12.4(c).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Waste Industries Inc)
Tax Controversies. (a) Each of Certegy and Equifax shall have full responsibility and discretion in handling, settling, or contesting any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one Curaleaf Common Parent shall deliver a written notice to the Seller Representative promptly following any demand, claim or more issues that would result in notice of commencement of a claim, proposed adjustment, assessment, audit, examination or other administrative or court proceeding with respect to Taxes of the Acquired Companies for which Equifax is liable under the Participating Securityholders may have an indemnification obligation pursuant to this Agreement (a “Tax Claim”) and shall describe in reasonable detail the facts constituting the basis for such Tax Claim, the nature of the relief sought, and the amount of the claimed Losses (ii) one including Taxes), if any (such notice, the “Tax Claim Notice”); provided, however, that the failure or more issues that would result in Taxes for which Certegy is liable under delay to so notify the Seller Representative shall not relieve the Participating Securityholders of any claim of indemnification pursuant to this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known except to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with extent that the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies EquifaxParticipating Securityholders are materially prejudiced thereby.
(ii) If Certegy notifies Equifax With respect to Tax Claims that it objects relate solely to a Pre-Closing Tax Period, the Seller Representative may elect to assume and control the defense of such Tax Claim (at the sole cost and expense of the Participating Securityholders) by written notice to Curaleaf Common Parent within thirty (30) days after delivery by Curaleaf Common Parent to the Seller Representative of the Tax Claim Notice. If the Seller Representative elects to assume the defense of any Tax Claim, (A) the Seller Representative shall keep Curaleaf Common Parent reasonably informed of all material developments and events relating to such Tax Claim, including by providing Curaleaf Common Parent with copies of all material correspondence and other material communications with respect to the Tax Claim, (B) the Seller Representative shall defend against such proposed adjustment relating to a Certegy Issue diligently and in good faith, (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy C) Curaleaf Common Parent shall have the right to attend all participate in (but not control) the defense of such proceedings Tax Claim (including participating in any discussions with any the applicable Governmental Authority regarding such Tax AuthorityClaims) at Curaleaf Common Parent’s sole cost and expense and (D) the Seller Representative shall not settle or compromise such Tax Claim without Curaleaf Common Parent’s consent, which consent will not be unreasonably withheld, conditioned or delayed. If the subject matter of Seller Representative does not assume pursuant to this clause (ii) or the Seller Representative fails to defend against such Tax Claim diligently and in good faith after notice from Curaleaf Common Parent, which is or includes not cured within thirty (30) days, Curaleaf Common Parent may, upon notice to Seller Representative, elect to control such Certegy IssueTax Claim at the sole cost and expense of the Participating Securityholders; provided that (A) Curaleaf Common Parent shall keep the Seller Representative reasonably informed of all material developments and events relating to such Tax Claim, including by providing the Seller Representative with copies of all material correspondence and other material communications with respect to the Tax Claim, and (B) Curaleaf Common Parent shall have the right to settle such Tax Claim at any time in its sole discretion.
(iii) Upon In connection with any Tax Claim relating to a Straddle Period, such Tax Claim shall be controlled by Curaleaf Common Parent; provided that (A) Curaleaf Common Parent shall keep the issuance Seller Representative reasonably informed of a notice all material developments and events relating to such Tax Claim, including by providing the Seller Representative with copies of all material correspondence and other material communications with respect to the Tax Claim, (B) the Seller Representative shall have the right to participate in (but not control) the defense of such Tax Claim (including participating in any discussions with the applicable Governmental Authority regarding such Tax Claims) at the Participating Stockholder’s sole cost and expense, and (C) Curaleaf Common Parent shall defend against such proposed adjustment diligently and in good faith, and (D) Curaleaf Common Parent shall not settle or similar stage compromise such Tax Claim without the prior written consent of the Seller Representative, such consent not to be unreasonably withheld, conditioned or delayed. Curaleaf Common Parent shall not be required to appeal an adverse decision of an administrative agency or court of competent jurisdiction with respect to such Tax Claim. The costs and expenses of defending against such Tax Claim shall be borne by the Participating Securityholders (in proportion to their respective Pro Rata Portions), on the one hand, and Curaleaf Common Parent, on the other hand, in the proceedingssame proportion that the Tax for the portion of the Straddle Period through and including the Closing Date bears to the Tax for the portion of the Straddle Period beginning after the Closing Date. If Curaleaf Common Parent fails to defend against such Tax Claim diligently and in good faith which is not cured within thirty (30) days after written notice from the Seller Representative, Certegy the Seller Representative may, upon written notice to Curaleaf Common Parent, elect to control such Tax Claim; provided that (A) the Seller Representative shall assume the conduct keep Curaleaf Common Parent reasonably informed of all further proceedingsmaterial developments and events relating to such Tax Claim, including by providing Curaleaf Common Parent with counsel selected by it, at Certegy's sole expense, insofar as copies of all material correspondence and other material communications with respect to the proceedings relate to a Certegy Issue (that is not an Equifax Issue)Tax Claim, and thereafter Certegy and Equifax (B) the Seller Representative shall jointly be responsible for have the conduct of proceedings right to contest settle such Certegy IssueTax Claim at any time in its sole discretion.
(iv) In the event that Equifax receives a notice of deficiency from the IRS, or a similar notice from any other The procedures for all Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax IssuesClaims shall be governed by this Section 7.2(e) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing the provisions of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax Section 10.4 shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency relating to the Certegy Issue, then Equifax (at Certegy's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled apply to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings not inconsistent with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax IssueSection 7.2(e).
(v) If the proposed adjustment relating to a Certegy Issue is also an Equifax Issue (or if the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue), then Equifax shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issue.
(d) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Equifax Issues (none of which are Certegy Issues) and does not relate to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issue).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Tax Controversies. (ai) Each Purchaser and Seller shall each use reasonable efforts to keep the other advised as to the status of Certegy Tax audits and Equifax litigation involving any direct, indirect or contingent Taxes which could give rise to a liability of the Seller Group to Purchaser under this Agreement for any pre-closing period (a "Tax Liability Issue"). Seller agrees to timely notify Purchaser regarding any proposed written communication (i.e., communications not relating to inquiries or requests for information) by Seller to any such Taxing Authority with respect to a Tax Liability Issue to the extent that the issue would impact a post-closing period of Purchaser or the Acquired Subsidiaries. Purchaser shall have the right to consult with Seller regarding any response to such communications.
(ii) Seller shall have full responsibility for and discretion in handling any Tax Controversy including, without limitation, an audit, a protest to the appeals division of the IRS, or similar state or local appellate division, and litigation in the U.S. Tax Court, or any other court of competent jurisdiction (a "Tax Proceeding") for any pre-closing period. Purchaser or the Acquired Subsidiaries shall give the Seller Group the ability to handle any Tax Controversy whether by power of attorney or as otherwise required by the Taxing Authority. However, upon request by Purchaser and with the consent of Seller, Purchaser at its own expense shall have full responsibility and discretion in handling, settling, or contesting handling any Tax Controversy involving a Tax for which such party is liable pursuant to Article II of this Agreement. If a Tax Controversy proceeding involves both (i) one or more issues that would result in Taxes for which Equifax is liable under this Agreement and (ii) one or more issues that would result in Taxes for which Certegy is liable under this Agreement, then Equifax and Certegy shall cooperate with each other to allow each party to conduct the Tax Controversy with respect to those issues that would result in Taxes for which such party is liable. Furthermore, Equifax may participate in any Tax Controversy with respect to Restructuring Taxes regardless of whether it has liability or indemnification obligations with respect to such Taxes under this Agreement.
(b) The party responsible Proceeding for any Tax Controversy shall use all reasonable efforts (taking into consideration all relevant facts and circumstances known to the party) to resist any deficiency assertions by any Tax Authority regardless of which party is ultimately responsible for any such Tax under this Agreement.
(c) Equifax shall notify Certegy promptly of any communication with the IRS or other Tax Authority relating in whole or in part to any Certegy Issue.
(i) Certegy shall have 30 days after receipt of such notice from Equifax within which to object to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue). If Certegy does not notify Equifax within such 30 day period that it objects to the proposed adjustment, then subsections 6.1(c)(ii) through 6.1(c)(v) below shall not apply, and Equifax shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Certegy so notifies Equifax.
(ii) If Certegy notifies Equifax that it objects to the proposed adjustment relating to a Certegy Issue (that is not an Equifax Issue), then Equifax shall not thereafter consent to the adjustment or compromise of such Certegy Issue without the consent of Certegy, but shall cooperate with Certegy to resolve the Certegy Issue on a basis acceptable to Certegy. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Equifax shall be responsible for the conduct of the audit, including matters pertaining to such Certegy Issue. Equifax shall notify Certegy in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Certegy shall have the right to attend all such proceedings with any Tax Authority, the subject matter of which is or includes such Certegy IssuePre-closing tax period.
(iii) Upon In the issuance event that any one of the Acquired Subsidiaries is required or elects to pay any Tax, file any bond or deposit any amount in connection with a Tax Proceeding, Seller shall loan to Purchaser no later than three (3) Business Days before such payment is required to be made, without interest and until a final determination with respect to such Tax has occurred, one hundred percent of the amount to be paid or deposited by Purchaser. Within three (3) Business Days of the receipt by Purchaser of a notice refund of proposed adjustment or similar stage in the proceedings, Certegy shall assume the conduct of all further proceedings, with counsel selected any amount loaned to it by it, at Certegy's sole expense, insofar as the proceedings relate to a Certegy Issue Seller (that is not an Equifax Issueincluding any interest received by Purchaser), Purchaser shall pay such refunded amount to Seller net of any Tax cost incurred by Purchaser and thereafter Certegy and Equifax shall jointly be responsible for the conduct its Affiliates as a result of proceedings to contest such Certegy Issuerefund.
(iv) In If the event that Equifax receives a notice completion or settlement of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively to one or more Certegy Issues (none of which are Equifax Issues) and does not relate to an Equifax Issue then:
(A) upon receiving a written request from Certegy, given no later than a date reasonably necessary to permit preparation and timely filing of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Equifax shall timely file such petition (at Certegy's sole expense); or
(B) If (1) Certegy does not request Equifax to file a petition for redetermination of the deficiency pursuant to subsection 6.1(c)(iv)(A) hereof, (2) Certegy requests that Equifax file a claim for refund, and (3) Certegy provides Equifax with sufficient funds to pay the deficiency Proceeding relating to a Pre-Closing Tax Period, tax controversy or amended Tax Return gives rise to a Tax Benefit for any Post-Closing Tax Period to Purchaser, the Certegy IssueAcquired Subsidiaries and any Affiliates, then Equifax (at Certegy's sole expense) such persons shall file pay to Seller the actual amount of such Tax Benefit realized by such persons as it relates to such Pre-Closing Tax Period as and when received on an after-tax basis. No payment will be made under this paragraph for less than $50,000 per period or for a claim for refund thereof and, if the claim is denied, bring an action in a court period of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Certegy Issue, then Certegy shall have the right to cause Equifax to appeal from such adverse determination at Certegy's sole expense.
(D) Certegy and its representatives, at Certegy's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is a Certegy Issue (that is not an Equifax Issue), and (2) all appearances before any court, the subject matter of which is a Certegy Issue (that is not an Equifax Issue). The right to participate referred to in this subsection 6.1(c)(iv)(D) hereof shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to a Certegy Issue (that is not an Equifax Issue)more than ten years.
(v) If the proposed adjustment completion or settlement of any Tax Proceeding relating to a Certegy Issue is also an Equifax Issue (Pre-Closing Tax Period, tax controversy or if amended Tax Return gives rise to a tax liability for any Post-Closing Tax Period to Purchaser, the proposed adjustment relates solely to an Equifax Issue that is not a Certegy Issue)Acquired Subsidiaries and any Affiliates, then Equifax Seller shall pay to such persons the actual amount of such tax liability on an after-tax basis as and when paid. No payment will be fully responsible made under this paragraph for the conduct less than $50,000 per period or for a period of the Tax Controversy, including matters pertaining to any Certegy Issue, but Equifax shall use reasonable efforts to involve Certegy in the conduct of the Tax Controversy insofar as it relates to any Certegy Issue. Equifax shall notify Certegy in advance of any such proceedings and, at its own expense, Certegy may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Certegy Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Certegy Issuemore than ten years.
(dvi) Certegy shall notify Equifax promptly of any communication with the IRS or other Tax Authority relating in whole or in part By written notice to any Equifax Issue.
(i) Equifax shall have 30 days after receipt of such notice from Certegy within which to object to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue). If Equifax does not notify Certegy within such 30 day period that it objects to the proposed adjustmentSeller, then subsections 6.1(d)(ii) through 6.1(d)(v) below shall not apply, and Certegy shall have exclusive control over all stages of the Tax Controversy, including full authority to determine whether and in what manner to contest or compromise the issue, unless and until Equifax so notifies Certegy.
(ii) If Equifax notifies Certegy that it objects to the proposed adjustment relating to an Equifax Issue (that is not a Certegy Issue), then Certegy shall not thereafter consent to the adjustment or compromise of such Equifax Issue without the consent of Equifax, but shall cooperate with Equifax to resolve the Equifax Issue on a basis acceptable to Equifax. Prior to the issuance of a notice of proposed adjustment or similar stage in the proceedings, however, Certegy shall be responsible for the conduct of the audit, including matters pertaining to such Equifax Issue. Certegy shall notify Equifax in advance of any conferences, meetings, and proceedings pertaining to the audit and, at its own expense, Equifax Purchaser shall have the right to attend all such instruct Seller to forego proceedings with any Tax Authority, the subject matter of which is or includes such Equifax Issue.
(iii) Upon the issuance of a notice of proposed adjustment or similar stage in the proceedings, Equifax shall assume the conduct of all further proceedings, with counsel selected by it, at Equifax's sole expense, insofar as the proceedings relate to an Equifax Issue (that is not a Certegy Issue), and thereafter Certegy and Equifax shall jointly be responsible for the conduct of proceedings to contest such Equifax Issue.
(iv) In the event that Certegy receives a notice of deficiency from the IRS, or a similar notice from any other Tax Authority, and such notice relates exclusively respect to one or more Equifax Issues (none items for which Seller may be liable to indemnify Purchaser. Such notice shall constitute a waiver of which are Certegy Issues) and does the right of Purchaser to indemnification for any Taxes arising out of such item for the period or periods involved, but shall not relate otherwise waive any rights of Seller to a Certegy Issue then:
(A) upon receiving a written request from Equifax, given no later than a date reasonably necessary to permit preparation and timely filing any refund of a petition in the United States Tax Court for redetermination of the deficiency, or a court of similar jurisdiction with respect to Taxes imposed by any other Tax Authority, Certegy shall timely file such petition (at Equifax's sole expense); or
(B) If (1) Equifax does not request Certegy to file a petition for redetermination of the deficiency pursuant to subsection 6.1(d)(iv)(A) hereof, (2) Equifax requests that Certegy file a claim for refund, and (3) Equifax provides Certegy with sufficient funds to pay the deficiency relating to the Equifax Issue, then Certegy (at Equifax's sole expense) shall file a claim for refund thereof and, if the claim is denied, bring an action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax Court or other court of competent jurisdiction results in an adverse determination with respect to the Equifax Issue, then Equifax shall have the right to cause Certegy to appeal from such adverse determination at Equifax's sole expense.
(D) Equifax and its representatives, at Equifax's sole expense, shall be entitled to the extent permitted by law to participate in (1) all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is an Equifax Issue (that is not a Certegy Issue), and (2) all appearances before any court, the subject matter of which is an Equifax Issue (that is not a Certegy Issue). The right to participate referred to in this subsection 6.1(d)(iv)(D) shall include the submission and content of documentation, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the selection of witnesses, and the negotiation of stipulations of fact with respect to an Equifax Issue (that is not a Certegy Issuedeposit under Section 12.4(iii).
(v) If the proposed adjustment relating to an Equifax Issue is also a Certegy Issue (or if the proposed adjustment relates solely to a Certegy Issue that is not an Equifax Issue), then Certegy shall be fully responsible for the conduct of the Tax Controversy, including matters pertaining to any Equifax Issue, but Certegy shall use reasonable efforts to involve Equifax in the conduct of the Tax Controversy insofar as it relates to any Equifax Issue. Certegy shall notify Equifax in advance of any such proceedings and, at its own expense, Equifax may attend all conferences, meetings, or proceedings with any Tax Authority, the subject matter of which is or includes any Equifax Issue. Certegy shall use all reasonable efforts to assist Equifax in resisting any deficiency assertions by any Tax Authority relating to any such Equifax Issue.
Appears in 1 contract
