Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V. (b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).
Appears in 3 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.), Acquisition Agreement (Energizer Holdings, Inc.)
Tax Indemnification. (ai) From Republic and the Republic Subsidiaries shall jointly and severally indemnify, defend and hold harmless each Shareholder from and against any and all Losses asserted against, resulting to, imposed on or sustained, incurred or suffered by such Shareholder, directly or indirectly, by reason of or resulting from any and all Taxes imposed upon any of the Conveyed Entities or its Subsidiaries with respect to (x) any taxable period beginning before the Closing Date and ending after the Closing Date (such taxable periods are hereinafter referred to as "Straddle Periods", and the Taxes for such periods are hereinafter referred to as "Straddle Taxes") and (y) any taxable period (other than a Straddle Period) ending after the Closing Date (such taxable periods are hereinafter referred to as "Post-Closing Periods", and the Taxes for such periods are hereinafter referred to as "Post-Closing Taxes").
(ii) Indemnification payments pursuant to this Section 6.7(e) shall be made by paying to the indemnified party amounts that, on an after-Tax basis reflecting the Tax consequences, if any, of each payment by the indemnified party of Taxes and the receipt of the payments from the indemnifying party pursuant to this Section 6.7(e), are equal to the amount of the Losses suffered by the indemnified party. Any payment due pursuant to this Section 6.7(e) shall be made not later than three (3) days after receipt by the indemnifying party of written notice from the indemnified party stating that any Losses against which the indemnified party is entitled to indemnification have been paid and the amount thereof and of the related indemnity payment. Any indemnification payment required to be made hereunder that is not paid when due shall bear interest until paid at a rate per annum equal to the rate of interest publicly announced in the Wall Street Journal from time to time as the prime rate.
(iii) For purposes of determining the amount of Straddle Taxes for or which relate to the pre-Closing or post-Closing portion of Straddle Period, the Closing Date shall be treated as the last day of a taxable period, and the portion of any such Tax that is allocable to the taxable period that is so deemed to end on and include the Closing Date: (x) in the case of Taxes that are either (1) based upon or measured by income or receipts or (2) imposed in connection with any sale, transfer, assignment or distribution of property (real or personal, tangible or intangible), shall be deemed equal to the amount which would be payable if the period for which such Tax is assessed ended on and included the Closing Date, Seller and (y) in the cases of Taxes other than Taxes described in clause (x) hereof, shall indemnify be the Purchaser Indemnified Persons against total amount of Tax for the full taxable period that includes the Closing Date multiplied by a fraction, the numerator of which is the number of days in the pre-Closing portion of the Straddle Period and hold them harmless from any Losses arising fromthe denominator of which is the total number of days in that full taxable period.
(iv) If a notice of deficiency, relating to proposed adjustment, adjustment, assessment, audit, examination, suit, dispute or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities other claim with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which one party to this Agreement is entitled to indemnification from another party (a Transferred Entity, Purchaser "Tax Claim") shall be delivered or sent to or commenced or initiated against any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business Conveyed Entities or ownership its Subsidiaries by any taxing authority, such Conveyed Entity or Subsidiary shall promptly notify the Shareholders in writing of the Transferred Assets prior Tax Claim. If a Tax Claim shall be delivered or sent to the Closing, (v) or commenced or initiated against any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or Shareholder by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.Vtaxing authority, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business such Shareholder shall promptly notify Republic or the Transferred Entities (other than, for the avoidance Republic Subsidiaries in writing of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing such Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Claim.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Republic Industries Inc), Agreement and Plan of Reorganization (Guy Salmon Usa LTD), Agreement and Plan of Reorganization (Republic Industries Inc)
Tax Indemnification. (a) From and after the Closing Date, Seller PHMD shall indemnify the Purchaser DSKX Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any all Taxes imposed on of the Business or Radiancy Group for the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result other than Taxes attributable to extraordinary transactions undertaken on the Closing Date at the direction of the Pre-Closing RestructuringDSKX), (ii) any all Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of Radiancy Group or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person Affiliates thereof (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxesthe Radiancy Group), in each case, including any liability for Taxes allocable to the extent such Taxes are attributable to the operation or arising out of the Business or ownership of the Transferred Business Assets prior to the Closing, (v) for any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with and including all Taxes incurred by the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Radiancy Group or any of Affiliates thereof (other than the Radiancy Group) due to the conveyance by PHMD and its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, Business Assets under this Agreement); and (viiiiii) any German business all Taxes that are the responsibility of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised Company pursuant to Section 8.06(c5.6(b); provided, however, that in the case of clauses (i), (ii) any and (iii) above, PHMD shall be liable only to the extent that such Taxes are in excess of the amount, if any, taken into account as a liability in determining the adjustment described in Section 2.04, Working Capital on the Closing Date as finally determined under this Agreement and by reducing the amount of any indemnity payment by the amount of (iiix) any Taxes tax benefit to the DSKX Indemnified Persons that is attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, the loss and (ivy) any Transfer offsetting and recoverable Taxes for which Purchaser is liable in other jurisdictions. PHMD’s obligation to indemnify and hold harmless Surviving Corporation and each Surviving Corporation Affiliate under this Section 7.2 shall survive until sixty (60) days following the expiration of the statute of limitations applicable to the underlying Tax (giving effect to any waiver, mitigation or extension of the subject statute of limitations); provided, however, that if notice of a claim shall have been timely given to PHMD under Section 8.016.2 or Section 7.1(b) on or prior to such survival termination date, provided that PHMD’s obligation to indemnify and hold harmless the DSKX Indemnified Persons in respect of such claim shall survive beyond such date until such claim for indemnification has been satisfied or otherwise resolved. Any amounts paid or payable under this Section 11.07(b) 7.2 shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)without duplication with amounts otherwise payable under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Ds Healthcare Group, Inc.), Merger Agreement (Photomedex Inc)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against indemnify, defend, and hold them harmless Purchaser from and against any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and all Damages for: (i) any Taxes of or imposed on Seller; (ii) Transfer Taxes required to be paid by Seller pursuant to this Agreement; (iii) Taxes of or imposed upon the Business or the Transferred Acquired Entities with respect to any Pre-Closing Tax Periods, and for any Straddle Periods but only with respect to the portion of such Straddle Period ending on the Closing Date and as determined in the manner provided in Section 6.7 of this Agreement; (including as a result of the Pre-Closing Restructuring), (iiiv) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed the Acquired Entities under Treasury Regulations Section 1.1502-6 or any (and corresponding provision provisions of state, local local, or non-U.S. Tax foreign Law) as a result of its inclusion with Sellerhaving been a member of any federal, any Subsidiary Transferor state, local or any other Person (other than a Transferred Entity) in a foreign consolidated, unitary, combined or unitary Tax group, similar group for any Pre-taxable period ending on or before, or that includes, the Closing Tax PeriodDate, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor successor, pursuant to any Tax Indemnification Agreement, or by Contract (other than Contracts that do not primarily relate to Taxes)similar contract or arrangement, in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, otherwise; (v) any Taxes attributable to breach by Seller of any “subpart F income” (including any increase thereto under Section 965 of the Codecovenants and obligations contained in Section 6.7 of this Agreement; (vi) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income breach or earnings inaccuracy of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles representations and warranties set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any 3.14 of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, this Agreement and (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on or related or attributable to the Transferred Assets, the Business Excluded Assets or the Transferred Entities (other than, for transfer of the avoidance of doubt, Excluded Assets as contemplated by Section 11.01(a)(vi)2.1. All amounts payable or to be paid under this Section 6.8 shall be paid in immediately available funds within five (5) with respect Business Days after the receipt of a written request from the indemnified party entitled to such payment. The parties hereto agree to treat any Post-Closing payment made pursuant to this Section 6.8 and Article IX as an adjustment to the Purchase Price for all Tax Periodpurposes, except as required under applicable Law. In no event shall the indemnities provided for in this Section 6.8 be subject to the extent such Taxes are attributable to a breach provisions of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) Article IX of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Psychiatric Solutions Inc), Stock Purchase Agreement (Psychiatric Solutions Inc)
Tax Indemnification. (a) From Parent and after the Closing DateSeller shall, Seller shall indemnify jointly and severally, indemnify, defend and hold harmless the Purchaser Indemnified Persons against Parties against, and hold them harmless from shall reimburse the Purchaser Indemnified Parties for, any and all Losses arising from, relating to or otherwise in respect out of, except as provided in Section 11.07(b), based upon or relating or attributable to (without duplication):
(i) any all Taxes imposed on the Business or the Transferred MGM Acquired Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Regulation Section 1.1502-6 or any (and corresponding provision provisions of state, local or non-U.S. Tax foreign Law) as a result of its inclusion with Sellerbeing a member of any federal, any Subsidiary Transferor state, local or any other Person (other than a Transferred Entity) in a foreign consolidated, unitary, combined or unitary Tax group, similar group for any taxable period ending on or before, or that includes, the Closing Date;
(ii) all Taxes imposed on the MGM Acquired Entities relating or attributable to taxable periods ending on or before the Closing Date (“Pre-Closing Tax Periods”) and, with respect to any period that includes but does not end on the Closing Date (in each case, a “Straddle Period”), the portion of such Straddle Period deemed to end on and include the Closing Date (in the manner determined pursuant to Section 8.1(b)); provided, however, that Parent and Seller shall be liable only to the extent that such Taxes are in excess of the amount, if any, reserved for such Taxes on the financial statements of the MGM Acquired Entities and taken into account in determining the Final Purchase Price;
(iii) all Taxes relating or attributable to the transactions contemplated pursuant to this Agreement, including the Distributions and the Elections;
(iv) any Taxes for which a Transferred Entity, Purchaser breach of or inaccuracy in any Affiliate representation or warranty contained in Section 3.7 of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, this Agreement; and
(v) the breach by the MGM Parties or the failure by any Taxes attributable such entity to perform (or cause to have performed) any “subpart F income” (including any increase thereto under Section 965 of the Code) required covenants made by them under this Agreement relating to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Taxes.
(b) From and after For purposes of this Section 8.1, the portion of any Taxes that are allocable to the portion of the Straddle Period ending on the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of Date shall be:
(i) any in the case of Taxes that are imposed on the Transferred Assetsa periodic basis, the Business or the Transferred Entities (other than, amount of such Taxes for the avoidance entire period multiplied by a fraction the numerator of doubt, as contemplated by Section 11.01(a)(vi)which is the number of calendar days in the Straddle Period ending on (and including) with respect to any Post-the Closing Tax Date and the denominator of which is the number of calendar days in the entire relevant Straddle Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), ; and
(ii) any Taxes taken into account in the adjustment case of Taxes not described in Section 2.04, (iiii) any Taxes attributable to any breach the amount that would be payable if the taxable year or nonperformance period ended on the Closing Date based on an interim closing of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)the books.
Appears in 2 contracts
Samples: Stock Purchase Agreement (MGM Mirage), Stock Purchase Agreement (GNLV Corp)
Tax Indemnification. (aA) From Seller shall be liable for, shall pay, and shall defend, indemnify and hold Purchaser and its Affiliates (and their respective officers, directors, employees, agents and representatives) harmless from and against any and all Taxes due from the Company for any taxable period (or portion thereof) ending on or before the Closing Date, together with all Expenses related thereto; provided, however, that Seller shall not be liable for such Expenses or to indemnify Purchaser or its Affiliates on account thereof to the extent Section 6.2(E) expressly states that an action by Purchaser shall be at its Expense. Seller shall be entitled to all refunds of Taxes payable with respect to the Company for taxable periods (or portions thereof) ending on or before the Closing Date.
(B) Purchaser shall be liable for, shall pay, and shall defend, indemnify and hold Seller and its Affiliates (and its officers, directors, employees, agents and representatives) harmless from and against any and all Taxes due from the Company for any taxable period (or portion thereof) beginning after the Closing Date, together with all Expenses related thereto; provided, however, that Purchaser shall not be liable for such Expenses to the extent Section 6.2(E) expressly states that any action by Seller shall indemnify be at its Expense. Purchaser shall be entitled to all refunds of Taxes payable with respect to the Purchaser Company for such taxable periods (or portions thereof).
(C) The Indemnified Persons against Party shall notify the Indemnifying Party promptly of the commencement of any claim, action, suit or proceeding or other proposed charge or adjustment by any taxing authority concerning Taxes or other Damages for which the Indemnifying Party is liable pursuant to Section 6.2(A) or 6.2(B) hereof ("Tax Claim").
(D) The Indemnified Party shall furnish the Indemnifying Party in a timely manner with copies of all correspondence (including, without limitation, notices, requests, explanations, determinations, schedules, charts and hold them harmless lists) received from any Losses arising fromtaxing authority in connection with any Tax Claim for which the Indemnified Party is seeking indemnification hereunder.
(E) At its option (following reasonable notice and consultation with the Indemnified Party), relating the Indemnifying Party may, at its Expense, contest any Tax Claim in any legally permissible manner until such time as any payment for Taxes or such other Damages with respect to or otherwise in respect ofsuch Tax Claim is due or, except upon the Indemnifying Party's payment of such Taxes and other Damages, may xxx for a refund thereof where permitted by applicable law. Except as provided in Section 11.07(b)the last sentence of this subsection, (i) the Indemnifying Party shall control all actions, suits and proceedings taken in connection with any Taxes imposed such contest or refund suit, and may pursue or forego any and all administrative appeals, actions, suits and proceedings and conferences with the taxing authority in respect to such Tax Claim. Notwithstanding the foregoing, if such contest or refund suit has or would reasonably be expected to have a material adverse effect on the Business Indemnified Party or on the Transferred Entities liability of the Indemnified Party for Taxes, if the Indemnified Party is Purchaser or an Affiliate thereof, with respect to any Pre-Closing Tax Period period (including as a result of the Pre-Closing Restructuring), (iior portion thereof) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and ending after the Closing Date, Purchaser and and, if the Transferred Entities shallIndemnified Party is Seller, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except period (or portion thereof) ending on or prior to the extent Closing Date, then the Indemnified Party may, at its Expense, participate in any such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) contest or Section 4.15(l) refund suit and no party shall compromise or any inaccuracy in Section 4.15(h) settle such contest or refund suit without the consent of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))other parties, (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) consent shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)unreasonably withheld.
Appears in 2 contracts
Samples: Share Purchase Agreement (Procentury Corp), Share Purchase Agreement (Procentury Corp)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against be responsible for and shall indemnify, defend and hold them Buyer and its Affiliates harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any Taxes imposed on all liability for Taxes, other than Income Taxes, with respect to the Conveyed Assets or the Business for any taxable period that ends on or before the Transfer Date including, without limitation, (ii) all liability for Income Taxes with respect to the Conveyed Assets or the Transferred Entities Business for any taxable period, or portion thereof, that ends on or before the Transfer Date, (iii) all liability for any breach of Seller's representations and warranties contained in Section 3.16, and (iv) all liability for reasonable legal, accounting and appraisal fees and expenses with respect to any Pre-Closing Tax Period item described in clauses (including as a result of the Pre-Closing Restructuringi), (ii) any Taxes that are Retained Liabilities hereunder, or (iii) any above; provided, however, that Seller's responsibility and indemnity obligation for Taxes imposed on a Transferred Entity (including any pursuant to this Section 7.5(a) shall be reduced by refunds of Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-respect to such periods received after the Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or Date by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Buyer or any of its Affiliates after the Closingand not previously remitted to Seller. Seller's obligation to indemnify, (vi) any Taxes attributable to any breach defend or violation of hold harmless Buyer or any of Seller’s representations set forth in Section 4.15, (vii) its Affiliates from any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by liability shall terminate effective with the sale expiration of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income applicable statute of limitations (Sonderbetriebseinnahmenincluding extensions) or resulting from supplementary balance sheets (Ergänzungsbilanzen) in respect of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.such liability.
(b) From Buyer shall be responsible for and after the Closing Dateshall indemnify, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons defend and hold them Seller and its Affiliates harmless from any Losses arising from, relating to or otherwise in respect of and against (i) any all liability for Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Periodthe Conveyed Assets or Business, except to the extent Seller is otherwise required to indemnify Buyer for such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised Tax pursuant to Section 8.06(c)7.5(a), and (ii) any Taxes taken into account in the adjustment described in Section 2.04all liability for reasonable legal, (iii) any Taxes attributable accounting and appraisal fees and expenses with respect to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth item described in clause (vi). Purchaser's obligation to indemnify, defend or hold harmless Seller or any of its Affiliates from any liability shall terminate effective with the expiration of the applicable statute of limitations (including extensions) in respect of such liability.
(c) Any indemnity payment required to be made pursuant to this Section 11.07(a7.5 shall be paid within thirty (30) and Section 11.07(b)(idays after the indemnified party makes written demand upon the indemnifying party, but in no case earlier than five (5) shall not Business Days prior to the date on which the relevant Taxes are required to be construed as limiting any indemnity set forth in clause (vii) paid to the relevant Governmental Authority together with the submission of Section 11.07(a)evidence reasonably establishing the right to receive the payment.
Appears in 2 contracts
Samples: Business Transfer Agreement (Fairchild Semiconductor Corp), Business Transfer Agreement (FSC Semiconductor Corp)
Tax Indemnification. (a) From and after 12.5.1.1 Subject to the Closing Dateprovisions of Section 12.5.7, Seller shall indemnify the Purchaser Indemnified Persons against and its Affiliates (including TCH and each Subsidiary) and each of their respective officers, directors, employees, stockholders, agents and representatives and hold them harmless from all liabilities for Excluded Taxes. Notwithstanding the foregoing, Seller shall not indemnify and hold harmless Purchaser and its Affiliates (including TCH and each Subsidiary) or any Losses arising fromof their respective officers, relating directors, employees or agents, from any liability for Taxes attributable to any action taken after the Closing by Purchaser, any of its Affiliates (including TCH and each Subsidiary after the Closing) or otherwise in respect ofany transferee of Purchaser or any of its Affiliates (other than any action expressly required by applicable Law or contemplated by this Agreement) (a "Purchaser Tax Act") or attributable to a breach by Purchaser of its obligations under this Agreement.
12.5.1.2 Subject to the provisions of Section 12.5.7, except as provided in Section 11.07(b)Purchaser shall, and shall cause TCH and each Subsidiary to, indemnify Seller and its Affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives and hold them harmless from (i) all liability for Taxes of TCH and each Subsidiary for any Straddle Period ending after the Closing Date for that portion of any such Taxes imposed on that are not for the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of and except to the Pre-Closing Restructuringextent that such Taxes are Excluded Taxes), (ii) any all liability for Taxes that are Retained Liabilities hereunder, attributable to a Purchaser Tax Act or to a breach by Purchaser of its obligations under this Agreement; and (iii) any all liability for Taxes imposed on attributable to a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 Purchaser Tax Act resulting in the termination or any corresponding provision elimination of statea deduction, local tax abatement or non-U.S. Tax Law) as a result of its inclusion with tax credit lawfully claimed by Seller, TCH or a Subsidiary prior to the Closing Date.
12.5.1.3 In the case of any taxable period that includes (but does not end on) the Closing Date (a "Straddle Period"):
12.5.1.3.1 real, personal and intangible property Taxes ("Property Taxes") of TCH and each Subsidiary Transferor or any other Person allocable to the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of days in the Straddle Period; and
12.5.1.3.2 the Taxes (other than a Transferred EntityProperty Taxes) in a consolidatedof TCH and each Subsidiary allocable to the Pre-Closing Tax Period shall be computed as if such taxable period ended as of the Effective Time on the Closing Date, combined applying all exemptions, allowances or unitary Tax groupdeductions (including, for any but not limited to, depreciation and amortization deductions) applicable to such Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V..
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for 12.5.1.4 For the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth obligations in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) 12.5.1 shall not be construed as limiting any indemnity set forth subject to the Cap in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)12.2.
Appears in 2 contracts
Samples: Contribution and Purchase Agreement (Tecumseh Products Co), Contribution and Purchase Agreement (Tecumseh Products Co)
Tax Indemnification. (ai) From Buyer shall indemnify, defend and hold harmless Seller and its Affiliates, at any time after the Closing, from and against any liability for Taxes of the Company for any taxable period ending after the Effective Time except for Straddle Periods, in which case Buyer's indemnity will cover only that portion of any such Taxes that is not attributable to the Pre-Closing Date, Period.
(ii) Seller shall indemnify the Purchaser Indemnified Persons against indemnify, defend and hold them harmless Buyer and its Affiliates, at any time after the Closing, from and against any Losses arising fromliability for Taxes of the Company (including any joint or several liability imposed under Treasury Regulation Section 1.1502-6 or any similar provision of state, relating to local or otherwise foreign Tax law as a result of the inclusion of the Company in respect ofany consolidated, combined or unitary Tax Return), except as provided in Section 11.07(b5.8(c)(vii) hereof, for the Pre-Closing Period (including the portion of any Straddle Period ending on the Closing Date).
(iii) In determining the responsibility of Seller and Buyer for Taxes attributable to any Straddle Period, Taxes based upon or related to gross or net income or receipts shall be apportioned on the basis of an interim closing of the books as of the Effective Time, and all other Taxes shall be prorated on a daily basis.
(iv) If a claim for Taxes shall be made by any taxing authority in writing, which, if successful, might result in an indemnity payment pursuant to this Section 5.8, the party seeking indemnification (the "Tax Indemnified Party") shall promptly notify the other party (the "Tax Indemnifying Party") in writing of such claim (a "Tax Claim") within a reasonably sufficient period of time to allow the Tax Indemnifying Party effectively to contest such Tax Claim, and in reasonable detail to apprise the Tax Indemnifying Party of the nature of the Tax Claim, and provide copies of all correspondence and documents received by it from the relevant taxing authority. Failure to give prompt notice of a Tax Claim hereunder shall affect the Tax Indemnifying Party's obligation under this Section to the extent that the Tax Indemnifying Party is prejudiced by such failure to give prompt notice.
(v) With respect to any Tax Claim which might result in an indemnity payment to Buyer pursuant to this Section 5.8(e) (including, without limitation, Taxes of the Company for a Straddle Period), (i) Seller shall control all proceedings taken solely in connection with such Tax Claim, provided that Seller acknowledges in writing its liability to indemnify Buyer hereunder with respect to such Tax Claim. Without limiting the foregoing, Seller may in its reasonable discretion and at its sole expense pursue or forego any Taxes imposed on the Business or the Transferred Entities and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect to any Pre-Closing Tax Period Claim for which Seller may have an Indemnification obligation hereunder, and may, in its reasonable discretion, either pay the Tax claimed and xxx for a refund where applicable law permits such refund suits or contest such Tax Claim. Neither Buyer nor Seller shall under any circumstances settle or otherwise compromise any Tax Claim without first obtaining the other parties prior written consent, which consent shall not be unreasonably withheld. In connection with any proceeding taken in connection with such Tax Claim, (including as A) Seller shall keep Buyer informed of all material developments and events relating to such Tax Claim if involving a result material liability for Taxes and (B) Buyer shall have the right, at its sole expense, to participate in any such proceedings. Buyer shall cooperate with Seller in contesting such Tax Claim (without charge to Seller), which cooperation shall include, without limitation, the retention and the provision to Seller of records and information which are reasonably relevant to such Tax Claim, and making employees available to Seller to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim, provided that no charges shall be incurred by Seller for the services of such employees. In the event that an audit or proceeding involving a Tax Claim contested by Seller also involves a potential adjustment for which Buyer would be liable, Buyer shall have the right, at its expense, to control the audit or proceeding with respect to the latter potential adjustment. With respect to any issue arising in connection with a Tax claim for which both of the Pre-Seller and Buyer could be liable, or which recurs for any period ending after the Closing RestructuringDate (whether or not the subject of audit at such time), (ii) any Taxes each party may participate in the audit or proceeding and the audit or proceeding shall be controlled by that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or party which would bear the burden of the greater portion of the sum of the Tax Claim and any corresponding provision adjustments that may reasonably be anticipated in future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of statedeciding any issue that must be decided jointly (in particular, local or non-U.S. Tax Law) as a result choice of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entityjudicial forum) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, situations in which separate issues are otherwise controlled hereunder by Buyer and Seller.
(ivvi) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable With respect to any “subpart F income” (including any increase thereto under Tax Claim not described in Section 965 of the Code5.8(e)(v) required hereof which might result in an indemnity payment to Seller pursuant hereto, all proceedings shall be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined conducted in accordance with the principles set forth provisions that are parallel to those in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi5.8(e)(v) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)hereof.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Rollins Truck Leasing Corp), Stock Purchase Agreement (Rollins Truck Leasing Corp)
Tax Indemnification. (a) From and after the Closing Date, Seller PHMD shall indemnify the Purchaser DSKX Indemnified Persons against and hold them harmless from and against all Taxes of the Company, including any Losses arising from, relating liability for Taxes allocable to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation arising out of the Business or ownership of the Transferred Business Assets prior to the Closing, (v) for any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with and including all Taxes incurred by the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable Company due to actions taken the conveyance by Purchaser or any of PHMD and its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, Business Assets under this Agreement); and (viiiiii) any German business all Taxes that are the responsibility of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised Company pursuant to Section 8.06(c5.6(b); provided, however, that in the case of clauses (i), (ii) any and (iii) above, PHMD shall be liable only to the extent that such Taxes are in excess of the amount, if any, taken into account as a liability in determining the adjustment described in Section 2.04, Working Capital on the Closing Date as finally determined under this Agreement and by reducing the amount of any indemnity payment by the amount of (iiix) any Taxes tax benefit to the DSKX Indemnified Persons that is attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, the loss and (ivy) any Transfer offsetting and recoverable Taxes for which Purchaser is liable in other jurisdictions. PHMD’s obligation to indemnify and hold harmless Surviving Corporation and each Surviving Corporation Affiliate under this Section 7.2 shall survive until sixty (60) days following the expiration of the statute of limitations applicable to the underlying Tax (giving effect to any waiver, mitigation or extension of the subject statute of limitations); provided, however, that if notice of a claim shall have been timely given to PHMD under Section 8.016.2 or Section 7.1(b) on or prior to such survival termination date, provided that PHMD’s obligation to indemnify and hold harmless the DSKX Indemnified Persons in respect of such claim shall survive beyond such date until such claim for indemnification has been satisfied or otherwise resolved. Any amounts paid or payable under this Section 11.07(b) 7.2 shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)without duplication with amounts otherwise payable under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Photomedex Inc), Merger Agreement (Ds Healthcare Group, Inc.)
Tax Indemnification. (a) From and after the Closing DateThe Stockholders, Seller severally (but not jointly) in proportion to their respective ownership of Company Capital Stock, shall indemnify the Purchaser Indemnified Persons against and hold them harmless the Acquiror Indemnified Parties from and against any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise all Damages in respect of (i) all Taxes of the Company and its Subsidiaries (A) for any taxable period ending on or before the Closing Date, and (B) for the portion of any Straddle Period (as defined below) ending on the Closing Date (determined as provided in Section 6.2(d)); (ii) all Taxes attributable to any inclusion under Section 951 of the Code by Acquiror or its Affiliates at the end of the taxable year of a Subsidiary of the Company that includes the Closing Date arising out of any income accrued by such Subsidiary on or prior to the Closing Date; (iii) all Taxes imposed on any member of a consolidated, combined, unitary or similar group of which any of the Transferred AssetsCompany or its Subsidiaries is or was a member on or prior to the Closing Date, by reason of the liability of any of the Company or its Subsidiaries pursuant to Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under state, local or foreign Law); and (iv) all Taxes required to be paid by the Stockholders pursuant to Section 6.7 hereof.
(b) The Parties agree that any and all indemnification obligations hereunder of the Stockholders made pursuant to Section 6.1(a) shall be satisfied first from the available amount of the Indemnity Escrow Fund then on deposit with the Escrow Agent. If and only if the Indemnity Escrow Fund is exhausted or is otherwise unavailable, then the Stockholders, severally (but not jointly) in proportion to their respective ownership of Company Capital Stock, shall be liable to the Acquiror Indemnified Parties for all indemnification obligations pursuant to Section 6.1(a).
(c) Any refunds of Taxes with respect to the Company or its Subsidiaries that are paid or credited to the Acquiror, the Business Company, or any of its Subsidiaries or Affiliates and that relate to taxable periods ending on or prior to the Closing Date or the Transferred Entities (other than, portion of any Straddle Period ending on the Closing Date shall be for the avoidance account of doubt, as contemplated by Section 11.01(a)(vi)the Stockholders other than (i) with respect to any Post-amounts that were shown as an asset on the Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), Balance Sheet and (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes refunds attributable to the carryback of losses or other Tax attributes of the Company or any breach of its Subsidiaries from any period beginning after the Closing Date or nonperformance the post-Closing portion of Purchaser’s obligations pursuant any Straddle Period. The Acquiror shall pay over to Article VIIIthe Stockholder Representative any such refund or the amount of any such credit, and net of any Tax or expense incurred in respect of the receipt thereof or entitlement thereto within fifteen (iv15) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)days after receipt or entitlement thereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (STR Holdings LLC), Agreement and Plan of Merger (STR Holdings (New) LLC)
Tax Indemnification. IDX agrees to be responsible for and to indemnify and hold the Allscripts Indemnified Parties harmless from and against any and all Taxes that may be imposed upon or assessed against ChannelHealth or the assets thereof:
(aA) From and after with respect to all taxable periods ending on or prior to the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), ;
(iB) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period and all Taxes of ChannelHealth for the period allocated to IDX pursuant to Section 11.3(b)(iv);
(including as a result C) arising by reason of any breach by ChannelHealth or any inaccuracy of any of the Prerepresentations contained in Section 6.10 hereof;
(D) by reason of being a successor-Closing Restructuring), in-interest or transferee of another entity;
(iiE) with respect to any and all Taxes that are Retained Liabilities hereunder, (iii) of any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision member of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, group of which ChannelHealth (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser predecessor) is liable as or was a transferee member on or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser by reason of the liability of ChannelHealth pursuant to Treasury Regulation Section 1.1502-6(a) or any analogous or similar state, local or foreign Law or regulation; and
(F) by reason of the transactions contemplated by Article IV hereof. IDX shall also pay and shall indemnify and hold harmless the Transferred Entities shallAllscripts Indemnified Parties from and against any losses, jointly damages, liabilities, obligations, deficiencies, costs and severallyexpenses (including, without limitation, reasonable expenses and fees for attorneys and accountants) ("Related Costs") incurred in connection with the Taxes for which IDX is responsible to indemnify the Seller Allscripts Indemnified Persons and hold them harmless from Parties pursuant to this Section 11.3(a) (or any Losses arising fromasserted deficiency, claim, demand, action, suit, proceeding, judgment or assessment, including the defense or settlement thereof, relating to or otherwise in respect of (isuch Taxes) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance enforcement of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a11.3(a).
Appears in 2 contracts
Samples: Merger Agreement (Idx Systems Corp), Merger Agreement (Allscripts Inc /Il)
Tax Indemnification. (a) From The Sellers shall be liable for, and shall severally, and not jointly, indemnify and hold Purchaser and the Acquired Companies harmless against, (i) all Taxes imposed on the Acquired Companies, on any of their Subsidiaries or with respect to their businesses, for all taxable periods (or portions thereof) ending on or prior to the Closing Date, and (ii) subject to Section 8.4, all Taxes imposed on or with respect to payments made to the Sellers pursuant to this Agreement, except in each case (x) to the extent reflected as a current liability in the Closing Working Capital set forth in the Accepted Adjustment Statement or (y) to the extent such Taxes have been paid by the Sellers, the Acquired Companies, or their Subsidiaries, on or prior to the Closing Date (including through estimated Tax payments).
(b) Purchaser and Parent, jointly and severally, shall be liable for, and shall indemnify and hold the Sellers harmless against, all Taxes imposed on the Acquired Companies and their Subsidiaries for all taxable periods (or portions thereof) beginning after the Closing Date.
(c) For purposes of Section 8.1 and this Section 8.3, and subject to the first sentence of Section 8.1(a), Taxes for any Tax period of the Acquired Companies and their Subsidiaries that includes but does not end on the Closing Date (a “Straddle Period”) shall be allocated for all purposes of this Agreement (i) to the Sellers for the portion of the Tax period up to and including the close of business on the Closing Date, and (ii) to Purchaser for the portion of the Tax Period subsequent to the Closing Date. For that purpose, (A) real, personal and intangible property Taxes and any other Taxes levied on an annual or other periodic basis (“Per Diem Taxes”) of the Acquired Companies and their Subsidiaries for a Straddle Period shall be allocated between the periods described in clauses (i) and (ii) of the preceding sentence on a per diem basis based on the number of days during the Straddle Period ending with and including the Closing Date and the number of days during the Straddle Period commencing on the day after the Closing Date, Seller and (B) Taxes that are not Per Diem Taxes, including income Taxes and any transactional Taxes such as Taxes based on sales or revenue, of the Acquired Companies and their Subsidiaries for a Straddle Period shall indemnify be allocated between the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise periods described in respect of, except as provided in Section 11.07(b), clauses (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), and (ii) of the preceding sentence as if such Tax Period ended as of the close of business on the Closing Date. For purposes of clause (B) of the preceding sentence, any allocation of gross or net income or deductions or other items required to determine any Taxes attributable to such a Straddle Period shall be made by means of a closing of the books and records of the Acquired Companies and their Subsidiaries as of the close of business on the Closing Date, provided, that exemptions, allowances, deductions or periodic Taxes (such as property Taxes) that are Retained Liabilities hereundercalculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated between the period ending as of the close of business on the Closing Date and the period after the Closing Date in proportion to the number of days in each such period. Any refund resulting from an overpayment of Taxes for a Straddle Period shall be prorated based upon the method employed in this Section 8.3(c) taking into account the type of the Tax to which the refund relates.
(iiid) The Sellers shall be entitled to any refund of Taxes of the Acquired Companies and their Subsidiaries for any taxable period (or portion thereof) ending on or prior to the Closing Date, except to the extent any such credit or refund of Taxes is specifically reflected as a current asset in the Closing Working Capital set forth in the Accepted Adjustment Statement, net of any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 borne by Purchaser or any corresponding provision of state, local or non-U.S. Tax Law) the Acquired Companies and their Subsidiaries as a result of its inclusion with Seller, any Subsidiary Transferor receipt of such credit or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.refund.
(be) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for For the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except the rules and procedures of ARTICLE X shall apply to the extent such Taxes are attributable to a breach of any representation indemnification covenants set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)8.3.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Gsi Group Inc)
Tax Indemnification. (a) From Seller shall indemnify, defend and hold Buyer and its Affiliates (including after the Closing DateClosing, Seller shall indemnify the Purchaser Indemnified Persons against and hold them Transferred Subsidiaries) harmless from and against any Losses arising fromliability for, relating to or otherwise in respect of, except as provided in Section 11.07(b)without duplication, (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Transferred Subsidiary, the Devices & Services Business or any of the Purchased Assets for any Pre-Closing Tax Period and the portion of any Straddle Period ending on the Closing Date (including as determined pursuant to Section 8.3(c)) (ii) Taxes imposed on or with respect to any Transferred Subsidiary as a result of the Pre-membership of such Transferred Subsidiary in an affiliated, consolidated, combined, unitary, or similar group with respect to any affiliation in existence at any time prior to the Closing Restructuring(other than with respect to another Transferred Subsidiary), (ii) any Taxes that are Retained Liabilities hereunder, ; (iii) any Taxes imposed on a any Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 Subsidiary as transferee or any corresponding provision of statesuccessor, local by Contract or non-U.S. Tax Law) otherwise as a result of its inclusion with Seller, any Subsidiary Transferor a relationship or any other Person (other than a Transferred Entity) contractual arrangement entered into or in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets existence prior to the Closing, except to the extent that the liability for such Taxes is to another Transferred Subsidiary or to the Buyer or its Affiliates; (iv) Taxes imposed with respect to any Excluded Assets; (v) Seller’s share of any Transfer Taxes; (vi) Taxes attributable (other than Transfer Taxes) imposed with respect to the Internal Restructuring (or any deviations therefrom); (vii) Taxes (other than Transfer Taxes) arising as a result of the sale of any of the Transferred Subsidiaries, the Devices & Services Business or any of the Purchased Assets pursuant to this Agreement; and (viii) any Losses incurred in connection with items specified in clauses (i) through (vii) of this Section 8.3(a). The obligations of Seller pursuant to this Section 8.3(a) shall survive until the later of (i) the expiration of the applicable statute of limitations (giving effect to any “subpart F income” valid extensions) plus 30 days and (including ii) the final resolution of any increase thereto under applicable Tax Claim. Notwithstanding the foregoing, no indemnification shall be required pursuant to this Section 965 of the Code8.3(a) required with respect to be included in income in (i) a Post-Closing Tax Period solely to the extent that such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period was taken into account in calculating Net Working Capital, and (determined in accordance with the principles set forth in Section 8.03(a)ii), but excluding when taken into account, such Tax reduced the Purchase Price pursuant to Section 2.10(h).
(b) Buyer shall indemnify, defend and hold Seller and its Affiliates harmless, from and against, without duplication, (i) any such inclusion that is attributable to actions taken liability imposed by Purchaser any Taxing Authority against Seller or any of its Affiliates after the Closing, (vi) any for Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred AssetsSubsidiary, the Devices & Services Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) any Purchased Asset with respect to any Post-Closing Tax Period, except to Period and the extent such Taxes are attributable to a breach portion of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of Straddle Period beginning after the Seller Disclosure Letter Closing Date (as such Section of the Seller Disclosure Letter may be revised determined pursuant to Section 8.06(c8.3(c)), ; (ii) Buyer’s share of any Taxes taken into account in the adjustment described in Section 2.04, Transfer Taxes; (iii) any Taxes attributable to any breach refunds or nonperformance of Purchaser’s obligations credits due pursuant to Article VIII, Section 8.7; and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that Losses incurred in connection with the items specified in clauses (i) and (ii) of this Section 11.07(b8.3(b). The obligations of Buyer pursuant to this Section 8.3(b) shall not survive until the later of (i) expiration of the applicable statute of limitations (giving effect to any valid extensions) plus 30 days and (ii) the final resolution of any applicable Tax Claim.
(c) Where it is necessary for purposes of this Agreement to apportion between Seller and Buyer the Taxes of a Transferred Subsidiary for a Straddle Period, such liability shall be construed apportioned between the period deemed to end at the close of the Closing Date and the period deemed to begin at the beginning of the day following the Closing Date on the basis of an interim closing of the books, except that Taxes (such as limiting any indemnity set forth in clause (vreal or personal property Taxes) of Section 11.07(a) and Section 11.07(b)(i) imposed on a periodic basis shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)allocated on a daily basis.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Nokia Corp)
Tax Indemnification. (a) From and after Except to the Closing Dateextent attributable to a Purchaser Tax Act, Seller shall will be responsible for, and will indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising fromPurchaser and its Affiliates for, without duplication, all Taxes and Damages relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect that are attributable to any Pre-Closing Tax Period and, with respect to any Straddle Period, the portion of such Straddle Period deemed to end on and include the Closing Date; (including ii) any breach of any representation or warranty contained in Section 5.10, or of any covenant contained in Section 7.2(b)(S) or this Article 11; (iii) Seller’s share of any Transfer Taxes pursuant to Section 11.11; (iv) Taxes of Purchaser and its Affiliates that would not have arisen had Purchaser acquired the Company Shares directly (instead of through the acquisition of the Company Parent Interests);(v) the Uruguay Subsidiary or the Uruguay Divestiture; and (vi) any impuesto al valor agregado (“VAT”) liability that arises as a result of the Pre-Closing Restructuring)netting of Intercompany Obligations under Section 3.5 and is not offset or credited against VAT favorable balances attributable to such netting.
(b) Notwithstanding anything to the contrary in this Agreement, (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax groupthe Parties agree and acknowledge that, for any Pre-Closing Tax Periodamounts finally determined to be payable by Seller under this Article 11, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), such amounts will be paid solely from funds then available in each case, the Escrow Account only to the extent Purchaser elects at any time, by written notice to Seller, to have such Taxes are attributable amounts paid from the Escrow Account and Seller will be obligated to pay any such amounts not so paid from the Escrow Account.
(c) Any payment made pursuant to this Section 11.4 will be treated as an adjustment to the operation price for which the Company Parent Interests are purchased by the Purchaser for all Tax purposes unless otherwise required by applicable Law.
(d) Seller will not have any liability to indemnify Purchaser in respect of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto Tax under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely this Article 11 to the extent that (i) such subpart F income Tax is reduced or eliminated through the utilization of net operating losses of one or more of the Entities attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with including the principles set forth in Section 8.03(apre-Closing portion of a Straddle Period) (such net operating losses, the “Pre-Closing NOLs”)), but excluding any ; (ii) such inclusion that Tax is offset or credited against VAT favorable balances of one or more of the Entities attributable to actions taken by Purchaser or a Pre-Closing Period (including the pre-Closing portion of a Straddle Period) (such balances, the “Pre-Closing VAT Favorable Balances”); provided, however, that any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of reduction in Seller’s representations set forth in Section 4.15, indemnification obligation pursuant to this clause (viiii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by will not exceed the sale net Pre-Closing VAT Favorable Balances of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.VEntities, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or taken as a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after whole. After the Closing Date, Purchaser will use and the Transferred Entities shallwill cause its Affiliates to use commercially reasonable efforts to utilize first any Pre-Closing NOLs or Pre-Closing VAT Favorable Balances to reduce Taxes otherwise indemnifiable under this Article 11 before utilizing any other available tax attributes and benefits, jointly including other net operating losses and severallyany other deductions; provided, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanhowever, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) restructuring of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))Entities, (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach Purchaser or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall its Mexican Affiliates will not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)commercially reasonable for this purpose.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Nii Holdings Inc)
Tax Indemnification. (a) From and after the Closing Date, Seller 9.6.1.1 Sellers shall indemnify the Purchaser Indemnified Persons against and its Affiliates (including each Company and Subsidiary) and each of their respective officers, directors, employees, stockholders, agents and representatives and hold them harmless from any Losses arising fromall liability for Excluded Taxes. Notwithstanding the foregoing, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period Sellers shall not indemnify and hold harmless Purchaser and its Affiliates (including as a result of the Pre-Closing Restructuring), (iieach Company and Subsidiary) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of statetheir respective officers, local directors, employees or non-U.S. Tax Law) as a result of its inclusion with Selleragents, from any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, liability for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” action taken on or after the Closing Date by Purchaser, any of its Affiliates (including each Company and Subsidiary) or any increase thereto under Section 965 transferee of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (viother than any such action expressly required by applicable Law or by this Agreement) any Taxes (a "Purchaser Tax Act") or attributable to any a breach or violation by Purchaser of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.Vits obligations under this Agreement.
9.6.1.2 Purchaser shall, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From shall cause each Company and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severallySubsidiary to, indemnify the Seller Indemnified Persons Sellers and its Affiliates and each of their respective officers, directors, employees, stockholders, agents and representatives and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) all liability for Taxes of each Company and Subsidiary for any Taxes imposed on taxable period ending after the Transferred Assets, the Business or the Transferred Entities Closing Date (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such taxable period began before the Closing Date, in which case Purchaser's indemnity will cover only that portion of any such Taxes that are not for the Pre-Closing Tax Period), and (ii) all liability for Taxes attributable to a Purchaser Tax Act or to a breach by Purchaser of its obligations under this Agreement.
9.6.1.3 In the case of any representation set forth in Section 4.15(ktaxable period that includes (but does not end on) or Section 4.15(l) or any inaccuracy in Section 4.15(hthe Closing Date (a "Straddle Period"):
9.6.1.3.1 real, personal and intangible property Taxes ("Property Taxes") of each Company and Subsidiary allocable to the Seller Disclosure Letter Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of days in the Straddle Period; and
9.6.1.3.2 the Taxes (other than Property Taxes) of each Company and Subsidiary allocable to the Pre-Closing Tax Period shall be computed as if such Section taxable period ended as of the Seller Disclosure Letter may Effective Time on the Closing Date, applying all exemptions, allowances or deductions (including, but not limited to, depreciation and amortization deductions) applicable to such Pre-Closing Tax Period applied on an annual basis shall be revised pursuant allocated between the periods in proportion to Section 8.06(c)), (ii) any Taxes taken into account the number of days in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)each period.
Appears in 2 contracts
Samples: Purchase Agreement (Tecumseh Products Co), Purchase Agreement (Tecumseh Products Co)
Tax Indemnification. (a) From and after Except for Taxes specifically reserved for on the Closing Date, Seller shall indemnify Surplus Statement (it being understood that the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any aggregate amount of such reserves for Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each caseSurplus Statement shall reduce, to the extent of such reserves, the indemnification obligations of the Seller hereunder) and that are taken into account in determining the final Purchase Price, the Seller, shall indemnify the Buyer for the amount of all Damages attributable to (A) Liabilities of the Company: (v) for Taxes attributable to Taxable Periods (or portions thereof) ending on or before the Closing Date; (w) for Taxes allocable to Taxable Periods (or portions thereof) beginning after the Closing Date that arise out of a Tax Contest for a Taxable Period beginning prior to the Closing Date and are attributable to the operation of the Business a decrease in income or ownership of the Transferred Assets a gain, or an increase in deduction, loss or credit for a Taxable Period ending on or prior to the Closing, Closing Date; and (vx) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 arising from breach of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income representations or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles warranties set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth 3.19 and covenants in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V5.8 hereof, and (viiiB) any German business the Seller’s obligation to pay Transfer Taxes of Spectrum Brands Real Estate B.V. in as determined pursuant to Section 5.9. The Seller’s indemnification obligations under this Section 5.10 are referred to herein as the meaning of Section 75 German “Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Indemnity”.
(b) From For purposes of this Section 5.10 and the calculation of any indemnity payable or amount recoverable under this Agreement, any interest, penalties or additions to Tax accruing before or after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) Date with respect to any Post-Closing Tax Period, except a Liability for Taxes for which the Buyer is entitled to recover from the extent such Taxes are Seller shall be deemed to be attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of Tax period with respect to which the Seller Disclosure Letter (as such Section of Sellers is required to indemnify the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Buyer.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Maiden Holdings, Ltd.), Stock Purchase Agreement (Maiden Holdings, Ltd.)
Tax Indemnification. (a) From and after the Closing DateClosing, the Seller shall indemnify and hold the Purchaser Indemnified Persons against and hold them Parties harmless from all Pre-Closing Taxes and any Losses arising from, relating reasonable out-of-pocket legal and accounting fees and reasonable out-of-pocket expenses incurred in connection therewith.
(b) Notwithstanding anything in this Agreement to or otherwise in respect of, except as provided in Section 11.07(b), the contrary:
(i) the Purchaser Indemnified Parties shall not have any Taxes imposed on the Business or the Transferred Entities right to indemnification under this Section 7.10 with respect to, or based on, Taxes to the extent such Taxes (A) are due to the unavailability of any Pre-Closing net operating losses, credits or other Tax Period (including as a result of the Pre-Closing Restructuring), (ii) attributes in any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any PrePost-Closing Tax Period, (ivB) any Taxes for result from transactions or actions taken by the Purchaser Indemnified Parties on the Closing Date after the Closing which a Transferred Entity, Purchaser or any Affiliate are outside of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, the Ordinary Course of Business to the extent such Taxes transactions or actions are attributable to not contemplated by this Agreement, or (C) are accrued or otherwise reflected in the operation calculation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined Adjustment in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, 1.10 (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanand, for the avoidance of doubt, as contemplated the Seller shall have no obligation under this Agreement to pay any Taxes described in this clause (C)); and
(ii) the indemnification obligation of the Seller under this Section 7.10 shall be subject to the provisions of Section 2.06(f)(iv).
(c) If the Seller makes any payment to a Purchaser Indemnified Party pursuant to the provisions of this Section 7.10, the Seller shall be subrogated to all rights of the Purchaser Indemnified Party in respect of any Losses or Taxes indemnified by Section 11.01(a)(vi)) the Seller provided that such subrogation could not reasonably be expected to have an adverse effect on the operations, affairs, customer or supplier relationships or prospects of the MCC Business; provided, however, that the Seller’s right to subrogation with respect to any Post-Closing Tax Periodinsurance carriers shall not be subject to the proviso in the immediately preceding sentence; provided, except further, that the Seller’s right to subrogation shall at all times be limited by the terms of the R&W Policy to the extent the R&W Policy specifically limits or restricts such Taxes are attributable to a breach of any representation set forth in Section 4.15(kright.
(d) or Section 4.15(l) or any inaccuracy in Section 4.15(h) The indemnification rights of the Seller Disclosure Letter (as such Purchaser Indemnified Parties under this Section 7.10 shall survive in full force and effect until the expiration of the Seller Disclosure Letter may applicable statute of limitations, at which time they shall terminate and no claims shall be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes made for which Purchaser is liable indemnification under Section 8.01, provided that this Section 11.07(b7.10 thereafter.
(e) All indemnification payments under this Agreement shall not be construed treated as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)adjustments to the Purchase Price for income Tax purposes to the extent consistent with applicable Law.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Magellan Health Inc), Stock and Asset Purchase Agreement (Molina Healthcare, Inc.)
Tax Indemnification. (a) From and after Except to the extent taken into account in the calculation of Final Closing DateNet Working Capital, Seller shall indemnify the Purchaser Indemnified Persons hereby indemnifies Buyer and its Affiliates against and agrees to hold each of them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and all (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Liability for Pre-Closing Tax Period (including as a result Taxes of the Pre-Closing Restructuring), Purchased Subsidiaries; (ii) any Liability for Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Seller or any of its Affiliates after (other than the ClosingPurchased Subsidiaries); (iii) Damages arising out of, (vi) any Taxes attributable resulting from, or incident to any breach by Seller or violation any of its Affiliates (including the Purchased Subsidiaries prior to Closing) of any covenant contained in this Article VI; and (iv) Damages arising out of, resulting from, or incident to any breach of Seller’s representations set forth any representation or warranty contained in Section 4.156.01 without regard to any materiality qualifier contained therein, except to the extent such Damages are otherwise indemnified pursuant to the foregoing clauses (viii) through (iii); provided, however, that Seller shall have no Liability for the payment of any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) Damages attributable to or resulting from supplementary balance sheets (Ergänzungsbilanzen) any action or prohibited action described in Section 6.04 hereof. For purposes of Spectrum Brands Real Estate B.Vthis Section 6.06(a), and (viii) Taxes shall include the amount of Taxes that would have been paid but for the application of any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German credit or loss deduction attributable to Post-Closing Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for Periods. For the avoidance of doubt, as contemplated by Section 11.01(a)(vi)Taxes of the Seller or any of its Affiliates includes all capital gain or similar Tax arising from the Chinese Equity Seller’s disposition of the equity interests of the Chinese Purchased Subsidiaries to Buyer or Buyer’s Affiliate.
(b) with respect Buyer hereby indemnifies Seller and its Affiliates against and agrees to hold each of them harmless from any and all (i) Liability for Taxes of the Purchased Subsidiaries for Post-Closing Tax PeriodPeriods, except to the extent such Taxes are attributable subject to a indemnification by Seller pursuant to Section 6.06(a); and (ii) Damages arising out of, resulting from or incident to any breach by Buyer and its Affiliates (including the Purchased Subsidiaries after Closing) of any representation covenant contained in this Article VI.
(c) In the case of any Straddle Tax Period:
(i) Real, personal and intangible property Taxes and any other Taxes levied on a per diem basis and set forth in Section 4.15(kSchedule 6.06(c) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)“Per Diem Taxes”), of any Person for a Pre-Closing Tax Period shall be equal to the amount of such Per Diem Taxes for the entire Straddle Tax Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Tax Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Tax Period; and
(ii) Taxes of any Taxes taken into account in Person (other than Per Diem Taxes) for any Pre-Closing Tax Period shall be computed as if such Tax Period ended as of the adjustment described in Section 2.04, close of business on the day before the Effective Time.
(iii) All determinations necessary to give effect to the allocation set forth in the foregoing sentence shall be made in a manner consistent with prior practice of the Seller, its Subsidiaries or the Purchased Subsidiaries, as applicable.
(d) If any Taxes attributable Tax Claim shall be initiated, which, if successful, might result in an indemnity payment to a Person pursuant to this Section 6.06, the Indemnified Parties shall notify the Indemnifying Parties within fifteen (15) days of receipt of notice of such a Tax Claim; provided, that the failure to give such notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Parties have actually been prejudiced by such failure.
(e) With respect to any breach Tax Claim relating to a Tax period ending on or nonperformance prior to the Closing Date, Seller shall control all proceedings and may make all decisions taken in connection with such Tax Claim (including selection of Purchaser’s obligations pursuant counsel) at its own expense. With respect to Article VIIITax Claims relating to Straddle Tax Periods, to the extent possible, Tax Liabilities will be distinguished and (iv) any Transfer each Party will control the defense and settlement of those Taxes for which Purchaser it is liable under Section 8.01so liable. To the extent a Tax Liability cannot be so attributed, provided the Party that has the greater potential Liability shall control the defense and settlement, provided, that such Party defends the Tax issue as reported on the relevant Tax Return. Buyer shall control at its own expense all proceedings with respect to any Tax Claim relating to a Tax period beginning after the Effective Time. A Party shall promptly notify the other Party if it decides not to control the defense or settlement of any Tax Claim which it is entitled to control pursuant to this Agreement, and the other Party shall thereupon be permitted to defend and settle such Tax Claim at its own expense. Notwithstanding anything to the contrary in this Section 11.07(b) 6.06(e), Seller shall not settle any Tax Claim without Buyer’s prior written consent, which shall not be construed as limiting unreasonably withheld, conditioned or delayed, if the resolution of such Tax Claim reasonably could be expected to materially adversely affect the Tax Liability of the Buyer or its Affiliates (including the Purchased Subsidiaries) for any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Tax period ending after the Closing Date.
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Smith a O Corp), Asset and Stock Purchase Agreement (Regal Beloit Corp)
Tax Indemnification. (a) From and after the Closing Date, Seller PHMD shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (ia) any all Taxes imposed on of a Foreign Subsidiary for the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result other than Taxes attributable to any extraordinary transactions undertaken on the Closing Date at the direction of the Pre-Closing RestructuringPurchaser), (iib) any all Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of Seller Companies or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person Affiliates thereof (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to TaxesForeign Subsidiary), in each case, including any liability for Taxes allocable to the extent such Taxes are attributable to the operation or arising out of the Business or ownership of the Transferred Assets prior to the Closing, (v) for any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with and including all Taxes incurred by the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Seller Companies or any of Affiliates thereof (other than a Foreign Subsidiary) due to the conveyance by PHMD and its Affiliates after of the Closing, Transferred Assets under this Agreement); and (vic) any all Taxes attributable that are the responsibility of Sellers pursuant to Section 5.2(b). PHMD’s obligation to indemnify and hold harmless Purchaser and each Purchaser Affiliate under this Section 8.2 shall survive until sixty (60) days following the expiration of the statute of limitations applicable to the underlying Tax (giving effect to any breach waiver, mitigation or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale extension of the limited partner interests by Spectrum Brands Real Estate B.V. subject statute of limitations); provided, however, that if notice of a claim shall have been timely given to PHMD under Section 7.2 or by any special business income (SonderbetriebseinnahmenSection 8.1(b) on or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.Vprior to such survival termination date, PHMD’s obligation to indemnify and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in hold harmless the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business such claim shall survive beyond such date until such claim for indemnification has been satisfied or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) otherwise resolved. Any amounts paid or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable payable under Section 8.01, provided that this Section 11.07(b) 8.2 shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)without duplication with amounts otherwise payable under this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Photomedex Inc), Asset Purchase Agreement (ICTV Brands Inc.)
Tax Indemnification. 2.1 VERICHIP’S TAX INDEMNIFICATION FOR THE PRE-DECONSOLIDATION DATE PERIOD: VeriChip shall be liable for, indemnify, and hold Applied Digital harmless for all Taxes (ai) From imposed on or incurred by VeriChip for the Pre-Deconsolidation Date Period and (ii) equitably apportioned to VeriChip by Applied Digital for all tax periods beginning before and ending after the Closing Deconsolidation Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except . Except as provided in Section 11.07(b2.2(c), VeriChip, in turn, shall be entitled to receive all refunds of Taxes attributable to the Pre-Deconsolidation Date Period, if any, that are imposed or incurred by VeriChip or equitably apportioned to VeriChip from either the applicable tax authorities or Applied Digital (in the event such refund(s) have been made directly to Applied Digital).
2.2 VERICHIP’S 2006 TAX LIABILITY AND PAYMENT
(a) VeriChip’s liability for Taxes for the portion of the Pre-Deconsolidation Date Period attributable to the tax year in which the Deconsolidation Date occurs shall be based on Applied Digital’s preparation of the Consolidated Return for such taxable year and VeriChip’s review thereof. Any discrepancies between Applied Digital’s return position and VeriChip’s subsequent review shall be resolved by consultation by each Party’s respective tax officers and Applied Digital’s ultimate determination shall be controlling as long as such determination does not have a material adverse effect on VeriChip’s financial condition or results of operations.
(b) The Parties agree that, in determining VeriChip’s allocable share of the (i) any Unitary and (ii) Consolidated Tax Liabilities for the tax year in which the Deconsolidation Date occurs, they shall follow a reasonable method agreed to by both Parties.
(c) VeriChip shall pay Applied Digital its allocable share of the estimated Unitary and Consolidated Tax Liabilities for that portion of the tax year in which the Deconsolidation Date occurs that precedes the Deconsolidation Date within 45 days from the Deconsolidation Date. A “true-up” payment, should one be necessary, shall be made by VeriChip to Applied Digital or Applied Digital to VeriChip within 15 days after Applied Digital’s subsequent determination of VeriChip’s liability based on taxable income and tax credits reported as part of Applied Digital’s Unitary and Consolidated Returns and VeriChip’s separate state Tax returns for the taxable year in which the Deconsolidation Date occurs. If there is a refund of Taxes imposed on attributable to VeriChip for that portion of the Business or tax year in which the Transferred Entities Deconsolidation Date occurs that precedes the Deconsolidation Date, VeriChip shall retain such refund, or, if such refund is received by Applied Digital, Applied Digital shall pay the amount of such refund to VeriChip within 45 days of its receipt of such refund.
(d) Applied Digital shall be liable for, indemnify, and hold VeriChip harmless for all Taxes attributable to the event of Deconsolidation, including all taxes with respect to any deferred intercompany transactions within the meaning of Treasury Regulation § 1.1502-13.
(e) In connection with any Pre-Closing Tax Deconsolidation Date Period, neither Party to the Agreement will be required to compensate the other Party for any net operating losses incurred by that other Party that reduce the consolidated tax liability of the Consolidated Group or the taxable income of other members of the Consolidated Group. The same results shall apply for any Pre-Deconsolidation Date Period (including net operating losses that reduce the consolidated tax liability of the Consolidated Group or the taxable income of the other members of the Consolidated Group in connection with the use of such net operating loss as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered an audit by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. Internal Revenue Service, or by any special business income (Sonderbetriebseinnahmen) state or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)local tax authority.
Appears in 2 contracts
Samples: Tax Allocation Agreement (VeriChip CORP), Tax Allocation Agreement (VeriChip CORP)
Tax Indemnification. (a) From Except to the extent provided in Section 2.04, effective at and after the Closing DateClosing, Seller shall hereby agrees to indemnify the Purchaser Buyer Indemnified Persons Parties and, effective at the Closing, without duplication, the Company and its successors and assignees against and agree to hold each of them harmless from any Losses arising fromDamages suffered, relating to incurred or otherwise in respect paid as a result of, except as provided in Section 11.07(b), connection with or arising out of (iA) any Taxes imposed on of the Business or the Transferred Entities Company with respect to any Pre-Closing Tax Period (including as a result or arising out of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets transaction effected prior to the Closing, (vB) Taxes of Seller, the Asset Selling Entities and their Affiliates (other than the Company) for any Tax period, (C) Taxes attributable imposed with respect to the Zhuhai Business Assets with respect to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period and Taxes imposed with respect to the Other Business Assets with respect to any Tax period or portion thereof ending on or before the date of the Asset Transfer, and (D) Taxes relating to or arising out of the settlement or other resolution of intercompany accounts and agreements as contemplated by Section 7.02. With respect to any Straddle Period, the portion of such Tax that relates to the Pre-Closing Tax Period shall be determined in accordance with by applying the principles set forth in Section 8.03(a5.01(b)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V..
(b) From and Not later than 15 calendar days after receipt by Seller, the Closing Date, Purchaser Asset Selling Entities or their Affiliates of written notice from Buyer stating that any amount indemnifiable under Section 5.03(a) has been incurred and the Transferred amount thereof and of the indemnity payment requested, Seller or the Asset Selling Entities shallshall discharge their obligation to indemnify under Section 5.03(a) by paying to Buyer such amount in immediately available funds. Notwithstanding the foregoing, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect if Buyer provides written notice of (i) any Taxes imposed indemnifiable under Section 5.03(a) at least 15 calendar days prior to the date on which the Transferred Assetsrelevant Taxes are required to be paid, the Business within that 15-day period Seller or the Transferred Entities (other than, for the avoidance of doubtAsset Selling Entity, as contemplated applicable, shall discharge its obligation to indemnify under Section 5.03(a) against such Taxes by making payments to the relevant Taxing Authority or Buyer, as directed by Buyer, in an aggregate amount equal to the amount of such Taxes. The payment by Buyer or its Affiliate of any such Taxes shall not relieve Seller of its obligation under this Section 11.01(a)(vi)5.03.
(c) Seller shall provide Buyer with prompt notice of any audit, examination, or other Proceeding (A) with respect to Taxes of the Company or (B) that reasonably may be expected to give rise to a Lien on the Zhuhai Business Assets or Other Business Assets ((A) and (B) each a “Tax Proceeding”). Buyer shall provide Seller with prompt notice of any Post-Closing Tax PeriodProceeding for which Seller is or may be partially or fully liable to Buyer pursuant to this Agreement; provided, however, that failure to timely provide such notice shall not affect the Buyer’s right to indemnity under this agreement, except to the extent Seller is materially prejudiced by such Taxes are attributable delay.
(d) Buyer shall control any Tax Proceeding, provided, however, that (A) Buyer shall not settle or compromise the portion of any such Tax Proceeding that relates to an indemnified Tax without Seller’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), and (B) Buyer shall keep Seller reasonably informed of material developments relating to any such portion of such Tax Proceeding, including providing copies of correspondence from the applicable Taxing Authority and permitting Seller the opportunity to comment on submissions to such Taxing Authority.
(e) Notwithstanding anything in Article 6 to the contrary, the procedures set forth in this Section 5.03, and not the procedures set forth in Section 6.03, shall govern any Proceeding in respect of which indemnification may be sought under Section 5.03(a), Section 6.02(a) to the extent relating to a breach of any representation set forth the representations in Section 4.15(k3.24 (Tax Matters), or in relation to a breach of a covenant of Seller in this Article 5, except to the extent otherwise elected by Buyer.
(f) Any payments made to any party pursuant to this Section 5.03 or Section 4.15(l) or any inaccuracy in Section 4.15(h) Article 6 shall constitute an adjustment of the Seller Disclosure Letter (purchase price for Tax purposes and shall be treated as such Section of by the Seller Disclosure Letter may be revised pursuant parties on their Tax Returns to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)extent permitted by law.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Tessera Technologies Inc)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and its Affiliates and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), all liability for (i) any Excluded Taxes imposed on (except to the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including extent such Excluded Taxes are reflected as a result of the Pre-liability in Final Closing RestructuringDate Working Capital), (ii) any Transfer Taxes that are Retained Liabilities hereunderand VAT required to be borne by Seller pursuant to Section 14.9, (iii) Taxes arising from or in connection with any breach by Seller or any of its Affiliates of any covenant contained in this Agreement (but only to the extent appropriate to reflect the relative fault of Seller, on the one hand, and Purchaser, on the other hand) and (iv) all costs and expenses, including reasonable legal fees and expenses, attributable to any item in clauses (i) through (iii).
(b) Purchaser shall indemnify Seller and its Affiliates and hold them harmless from all liability for (i) any and all Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of statepayable with respect to the Acquired Companies or the Business, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, Excluded Taxes (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, except to the extent that such Excluded Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closingreflected as a liability in Final Closing Date Working Capital), (vii) any Transfer Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) and VAT required to be included borne by Purchaser pursuant to Section 14.9, (iii) Taxes arising from or in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance connection with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken breach by Purchaser or any of its Affiliates after of any covenant contained in this Agreement (but only to the Closingextent appropriate to reflect the relative fault of Purchaser, on the one hand, and Seller, on the other hand), (viiv) any Taxes an amount equal to the product of (A) 28% and (B) Incremental Subpart F Income, and (v) all costs and expenses, including reasonable legal fees and expenses, attributable to any breach or violation of any of Seller’s representations set forth item in Section 4.15, clauses (viii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income through (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.iv).
(bc) From and after Any indemnity payment to be made pursuant to Section 14.1 shall be paid no later than the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect later of (i) any Taxes imposed on ten days after the Transferred Assets, indemnified party makes written demand upon the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), indemnifying party and (ii) any Taxes taken into account in five days prior to the adjustment described in Section 2.04date on which the underlying amount is required to be paid by the indemnified party (provided, (iii) any Taxes attributable that, where no payment is required to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIIIbe made by the indemnified party, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) the indemnity payment shall not be construed as limiting any indemnity set forth made at the time specified in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(ai)).
(d) The indemnification provisions in this Section 14.1 shall survive the Closing until 90 days after the expiration of the applicable statute of limitations.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.), Stock and Asset Purchase Agreement (Dana Corp)
Tax Indemnification. (a) From and after After the Closing Date, Seller shall will indemnify the Purchaser Indemnified Persons against and hold them harmless Purchaser from and against any Losses arising and all claims, actions, causes of action, liabilities, losses, damages, and reasonable out-of-pocket expenses and costs resulting from, arising out of or relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result Taxes of the Pre-Closing Restructuring), Company; (ii) any Taxes of the Company measured by income or receipts (including, without limitation, any Tax liability that are Retained Liabilities hereunder, (iii) arises solely by reason of the Company being severally liable for any Taxes imposed on a Transferred Entity (including Tax of any Taxes imposed under current or former Affiliate of the Company pursuant to Treasury Regulations Section Regulation "1.1502-6 or any corresponding provision analogous state or local Tax provision) and all other Taxes of statethe Company except those described in Section 8.03(b); and (iii) all Taxes described in Section 8.01 in each case (except for income, local gaming and property taxes), net of any reserve therefor on the Final Statement. Notwithstanding the foregoing, the Seller shall not indemnify and hold harmless the Purchaser from any liability for Taxes for periods following the Closing Date or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach by the Purchaser of any representation set forth in its obligations under Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h8.02(c) of the Seller Disclosure Letter (as such Section this Agreement. The provisions of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b8.03(a) shall not be construed as limiting subject to the limitations or procedures of Article X.
(b) Purchaser will be responsible for and Purchaser will indemnify and hold Seller harmless against any indemnity set forth in clause all liabilities with respect to Taxes for any Taxable year or period that begins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date. Notwithstanding the foregoing, the Purchaser (vand the Company) shall not indemnify and hold harmless the Seller from any liability for Pre-Closing Taxes or which is attributable to a breach by the Seller of its obligations under this Agreement. The provisions of this Section 11.07(a) and Section 11.07(b)(i8.03(b) shall not be construed as limiting any indemnity set forth in clause (vii) subject to the limitations or procedures of Section 11.07(a).Article X.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Trump Entertainment Resorts Funding Inc), Stock Purchase Agreement (Majestic Star Casino LLC)
Tax Indemnification. (a) From and after the Closing Date, The Seller shall indemnify indemnify, defend, and hold harmless the Purchaser Indemnified Persons Parties (including the Company and the Subsidiaries) from and against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any and all Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person member (other than the Company or the Subsidiaries) of any affiliated, consolidated, unitary or other combined group with which the Company or the Subsidiaries files or has filed a Transferred Entity) in Tax Return on a consolidated, unitary or other combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to basis during the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Relevant Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) the activities or Section 4.15(l) or any inaccuracy in Section 4.15(h) properties of the Seller Disclosure Letter (as such Section of Company or the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))Subsidiaries, (ii) any Taxes taken into account in the adjustment described nature of penalties and interest imposed on the Purchaser Indemnified Parties (including the Company and the Subsidiaries) to the extent attributable to any breach of the representations contained in Section 2.043.09 or covenants in Section 6.01 of this Agreement, and Taxes attributable to the Relevant Period for the entity on which such Taxes are imposed, that are not Excluded Taxes and (iii) any loss, damage, liability or expense (including reasonable fees for attorneys and other outside consultants) incurred in contesting or otherwise in connection with any Taxes described in clause (i), (ii) or (iii) of this Section 6.03(a).
(b) The Purchaser shall indemnify the Seller Indemnified Parties against (i) any and all Taxes attributable to the activities or property of the Company or the Subsidiaries for which any Seller Indemnified Party becomes liable by reason of Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law); (ii) any Taxes in the nature of penalties and interest imposed on the Seller Indemnified Parties to the extent attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, the covenants contained in Section 6.01 of this Agreement; and (iviii) any Transfer loss, damage, liability or expense (including reasonable fees for attorneys and other outside consultants) incurred in contesting or otherwise in connection with any Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth described in clause (vi) or (ii) of this Section 11.07(a6.03(b).
(c) and The amounts payable or to be paid under this Section 11.07(b)(i6.03 (the "Tax Indemnity Payments") shall not be construed as limiting limited in aggregate amount, without duplication, to the Aladdin Original Purchase Price with respect to Tax Indemnity Payments arising out of the business of or otherwise related to Aladdin or to the Chicago Original Purchase Price with respect to any indemnity set forth Tax Indemnity Payments arising from any source other than Aladdin.
(d) All Tax Indemnity Payments shall be paid in clause immediately available funds within five (vii5) Business Days after the later of Section 11.07(a)(i) receipt of a written request from the party entitled to such Tax Indemnity Payment; and (ii) the day of payment of the amount that is the subject of the Tax Indemnity Payment by the party entitled to receive such Tax Indemnity Payment.
Appears in 2 contracts
Samples: Limited Liability Company Purchase Agreement (Macquarie Infrastructure CO Trust), Limited Liability Company Purchase Agreement (Macquarie Infrastructure CO LLC)
Tax Indemnification. (a) From and after the Closing DateClosing, Seller shall indemnify the Purchaser Indemnified Persons Indemnitees against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on suffered or incurred by any such indemnified party to the Business extent arising from (A) the breach of any Tax-related representation or warranty of Seller contained in Section 4.03 of this Agreement, or (B) the Transferred Entities with respect to breach of any PreTax-Closing Tax Period (including as a result related covenant or other agreement of the Pre-Closing Restructuring), Seller contained in Section 5.02 or 8.05; and (ii) any Taxes that are Retained Liabilities hereunderExcluded Tax Liability; provided, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of statehowever, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes)that, in each case, Seller is not required to satisfy any claim under this Section 10.03(a) to the extent such Taxes are attributable to that (A) the operation Tax arises as a result of the Business or ownership of the Transferred Assets prior to the Closinga change in any Tax law, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under in the rates of Tax, announced after the date of this Agreement, (B) the liability for Tax is disclosed on Section 965 4.03 of the CodeSeller Disclosure Schedule or (C) required to be included in income in the Tax arises as a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings result of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions action taken by Purchaser or any of its Affiliates outside the ordinary course on the Closing Date after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V..
(b) From and after the Closing DateClosing, Purchaser and the Transferred Entities shall, jointly and severally, shall indemnify the Seller Indemnified Persons against and hold them Seller harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes Transfer Tax liability of Purchaser imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c8.06(a)), ; (ii) any Taxes taken into account in Losses suffered or incurred by Seller to the adjustment described extent arising from the breach of any covenant or other agreement of Purchaser contained in Section 2.04, 8.06; and (iii) any Taxes attributable relating to the Acquired Assets that are Assumed Liabilities.
(c) Any indemnity payment to be made hereunder shall be paid within ten (10) days after the indemnified party makes written demand upon the indemnifying party, but in no case earlier than five (5) business days prior to the date on which the relevant Taxes (including any breach or nonperformance of Purchaser’s obligations pursuant estimated Tax payments) are required to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)paid to the relevant Taxing authority.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Seattle Genetics Inc /Wa)
Tax Indemnification. (a) From Seller will indemnify, defend and after the Closing Datehold Acquiror and its Affiliates harmless from and against all Excluded Taxes; provided, however, that Seller shall not be required to indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, Acquiror for any Pre-Closing Tax Period, (iv) Excluded Taxes resulting from or arising in connection with any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or breach by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Acquiror or any of its Affiliates (including, after the Closing, (vithe Wimbledon Entities) any Taxes attributable to any breach or violation of any of covenant in this Agreement. Subject to Section 9.08(f), Seller’s representations set forth in obligation to indemnify, defend or hold harmless Acquiror or any of its Affiliates (including the Wimbledon Entities) from any Excluded Taxes pursuant to this Section 4.15, (vii9.04(a) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by will terminate effective 60 days following the sale expiration of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income applicable statute of limitations (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.including extensions).
(b) From and after the Closing DateAcquiror will indemnify, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons defend and hold them Seller and its Affiliates harmless from any Losses arising from, relating to or otherwise in respect of and against all (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to the Wimbledon Entities, the other Wimbledon Assets or the Snacks Business for any Post-Closing Tax Period, except to the extent such other than any Taxes are attributable to a breach of any representation set forth in that Seller must indemnify Acquiror and its Affiliates for under Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)9.04(a), (ii) any Transfer Taxes taken into account in the adjustment described in for which Acquiror is responsible pursuant to Section 2.049.07, (iii) any Taxes attributable to resulting from or arising in connection with any breach by Acquiror or nonperformance any of Purchaser’s obligations pursuant to Article VIIIits Affiliates (including, after the Closing, the Wimbledon Entities) of any covenant in this Agreement, and (iv) costs and expenses, including reasonable legal fees and expenses, attributable to any Transfer item in clauses (i) through (iii). Subject to Section 9.08(f), Acquiror’s obligation to indemnify, defend or hold harmless Seller or any of its Affiliates from Taxes pursuant to this Section 9.04(b) will terminate effective 60 days following the expiration of the applicable statute of limitations (including extensions).
(c) In the case of any Straddle Period:
(i) Property Taxes and similar periodic Taxes imposed on or with respect to the Wimbledon Entities, the other Wimbledon Assets and the Snacks Business that are not based on income or receipts (e.g., annual franchise Taxes imposed based on authorized shares) allocable to the Pre-Closing Tax Period will be computed based upon the ratio of (A) the number of days in the portion of such Straddle Period that ends on the Closing Date to (B) the total number of days in such Straddle Period; and
(ii) Taxes of the Wimbledon Entities for which Purchaser is liable under the Pre-Closing Tax Period, other than Taxes described in Section 8.019.04(c)(i), will be computed as if such Tax period ended as of the close of business on the Closing Date and, in the case of any Taxes of the Wimbledon Entities attributable to the ownership of any equity interest in any partnership or other “flowthrough” entity, as if the Tax period of such partnership or other “flowthrough” entity ended as of the close of business on the Closing Date; provided that exemptions, allowances or deductions that are calculated on an annual basis shall be allocated between the portion of the Straddle Period ending on the Closing Date and the portion of the Straddle Period ending after the Closing Date in proportion to the number of days in each such period.
(d) Any indemnity payment required to be made pursuant to this Section 11.07(b9.04 will be made within 30 days after the Indemnitee makes written demand upon the Indemnifying Party, but in no case earlier than five Business Days prior to the date on which the relevant Taxes are required to be paid to the applicable Taxing Authority.
(e) shall If a claim or other Tax Proceeding is made or initiated by any Taxing Authority (a “Tax Claim”) which, if successful, could result in an indemnity payment pursuant to Section 9.04, the Party receiving notice of such Tax Claim will promptly notify the other Party in writing of such claim (and provide copies of any documents received from the Taxing Authority in respect of such claim) no later than ten Business Days after such Tax Claim is made; provided that failure to provide such notice will not relieve such other Party of its indemnification obligations except to the extent that such other Party is materially prejudiced by such failure. With respect to any Tax Claim relating to a Tax period ending on or before the Closing Date or otherwise relating to, or affecting, a Consolidated Tax Return, Seller will control, at its own expense, all proceedings and may make all decisions taken in connection with such Tax Claim (including selection of counsel), and, without limiting the foregoing, may, in its sole discretion, pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect thereto, and may, in its sole discretion, either pay the applicable Liability for Taxes and xxx for a refund or contest the Tax Claim; provided, however that with respect to any Tax Claim relating to a separate Tax Return that could reasonably be expected to have an adverse effect on Acquiror or any of its Affiliates (including, after the Closing, the Wimbledon Entities) that is material, Seller will not settle any such Tax Claim without the prior written consent of Acquiror, which consent will not be construed as limiting unreasonably withheld, conditioned or delayed.
(f) The Preparing Party will control all Tax Claims with respect to Straddle Period Tax Returns of the Wimbledon Entities required to be prepared by such Preparing Party pursuant to Section 9.01(a); provided, however, that such Preparing Party will not settle, compromise or abandon any indemnity set forth in clause (v) such Tax Claim without the prior written consent of Section 11.07(a) and Section 11.07(b)(i) shall the Reviewing Party, which consent will not be construed as limiting unreasonably withheld, conditioned or delayed. For the avoidance of doubt, Acquiror will control all Tax Claims with respect to Taxes of or with respect to a Wimbledon Entity, the other Wimbledon Assets or the Snack Business for any indemnity set forth in clause (vii) of Section 11.07(a)Tax Period beginning after the Closing Date.
Appears in 2 contracts
Samples: Transaction Agreement (Kellogg Co), Transaction Agreement (Kellogg Co)
Tax Indemnification. (a) From and after the Closing Date, Seller PHMD shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any all Taxes imposed on of the Business or Foreign Subsidiary for the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result other than Taxes attributable to extraordinary transactions undertaken on the Closing Date at the direction of the Pre-Closing RestructuringPurchaser), (ii) any all Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of Seller Companies or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person Affiliates thereof (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxesthe Foreign Subsidiary), in each case, including any liability for Taxes allocable to the extent such Taxes are attributable to the operation or arising out of the Business or ownership of the Transferred Assets prior to the Closing, (v) for any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with and including all Taxes incurred by the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Seller Companies or any of Affiliates thereof (other than the Foreign Subsidiary) due to the conveyance by PHMD and its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, Transferred Assets under this Agreement); and (viiiiii) any German business all Taxes that are the responsibility of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised Sellers pursuant to Section 8.06(c5.6(b); provided, however, that in the case of clauses (i), (ii) any and (iii) above, PHMD shall be liable only to the extent that such Taxes are in excess of the amount, if any, taken into account as a liability in determining the adjustment described in Working Capital on the Closing Date as finally determined under Section 2.04, 2.5. PHMD’s obligation to indemnify and hold harmless Purchaser and each Purchaser Affiliate under this Section 9.2 shall survive until sixty (iii60) any Taxes attributable days following the expiration of the statute of limitations applicable to the underlying Tax (giving effect to any breach waiver, mitigation or nonperformance extension of Purchaser’s obligations pursuant the subject statute of limitations); provided, however, that if notice of a claim shall have been timely given to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable PHMD under Section 8.018.2 or Section 9.1(b) on or prior to such survival termination date, provided that PHMD’s obligation to indemnify and hold harmless the Purchaser Indemnified Persons in respect of such claim shall survive beyond such date until such claim for indemnification has been satisfied or otherwise resolved. Any amounts paid or payable under this Section 11.07(b) 9.2 shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)without duplication with amounts otherwise payable under this Agreement.
Appears in 1 contract
Tax Indemnification. 9.2.1 Purchaser is obliged to notify the competent tax authority of the commencement of a new business (aBetriebseröffnung) From and within the meaning of § 138 (1) of the General Tax Code (Abgabenordnung, AO) with no undue delay but in no case later than 20 Business Days after the Closing Date.
9.2.2 Sellers, Seller as joint and several debtors, shall indemnify the Purchaser Indemnified Persons against and hold them harmless from a potential liability of the Purchaser pursuant to § 75 AO or § 11 para. 2 of the Land Tax Act (Grundsteuergesetz, GrStG).
9.2.3 With regard to any Losses arising fromTax for which Purchaser seeks reimbursement or indemnity under this Clause 9, relating to or otherwise in respect of, except as provided in Section 11.07(b), Purchaser shall (i) any Taxes imposed on provide to the Business or Sellers Representative without undue delay, at the Transferred Entities with respect latest (14) fourteen days prior to any Pre-Closing Tax Period (including as a result the expiration of the Pre-Closing Restructuringlegal objection deadline (Rechtsbehelfsfrist), a copy of the respective tax assessment notice or liability claim notice, (ii) any Taxes that are Retained Liabilities hereunderfile in due course a legal objection notice (Rechtsbehelf) upon the reasonable request of the Seller, and (iii) any conduct the legal remedy procedures as reasonably instructed by the Seller, all at Sellers’ expense that will be promptly reimbursed upon demand.
9.2.4 Any indemnification claim of the Purchaser under this Clause 9 shall become time barred six months after the respective tax notice or liability claim notice has become final, binding and irrevocable (formell und materiell bestandskräftig), provided however, that once Sellers are on notice of an indemnification claim hereunder, such claim shall survive until it has been resolved. Indemnification claims under this Clause 9 are not subject to the amount or time limitations set forth in Clause 8.
9.2.5 Sellers shall indemnify and hold Purchaser harmless against all Taxes imposed on Purchaser by way of a Transferred Entity binding assessment (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. formell bestandskräftiger Bescheid) which is neither preliminary (vorläufig) nor subject to the statutory reservation for review by the relevant Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person Authority (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to TaxesXxxxxxxxx xxx Xxxxxxxxxxx), in each case, if and to the extent such Taxes are attributable (i) relate to the operation activities of the Business Company during any period ending on or ownership of the Transferred Assets prior to the Closing, Closing Date and (vii) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of have not been paid by the Code) required to be Closing Date or have not been included in income in a Post-the Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings Date Financial Statements by way of a Transferred Entity for a Pre-Closing Tax Period liability (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (SonderbetriebseinnahmenVerbindlichkeit) or resulting from supplementary balance sheets a reserve (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for Rückstellung). For the avoidance of doubt, as contemplated by Section 11.01(a)(viit is expressly agreed that the aforementioned indemnity also covers tax risks resulting from the activities of legal entities which were contributed to, or the assets of which were taken over by, the Company, in particular, but not limited to, the following entities: “Beteiligungsgesellschaft X. xxx Xxxxx (GbR)” and “Xxxxx Xxxx Xxxxxx Basaltwerke GmbH & Co. KG”.
9.2.6 Any indemnity payment pursuant to this Clause 9 shall become due within sixty (60) with respect days after Purchaser has notified Sellers in writing of the respective Tax (such notice to any Post-Closing include copies of all relevant Tax Periodassessments), except but in no event earlier than ten (10) Business Days before the relevant Tax becomes due and payable to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)competent Taxing Authority.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Trans World Corp)
Tax Indemnification. (a) From and after Each of the Closing Date, Seller shall Stockholders hereby agrees to indemnify the Purchaser Indemnified Persons against and hold them Acquisition Sub and ARC harmless from any Losses arising from, relating and to or otherwise in respect ofreimburse Acquisition Sub and ARC for, except as provided in Section 11.07(b)any Tax Indemnity Claim. For purposes of this Agreement, the term "Tax Indemnity Claim" shall mean any tax, penalty and interest (i"Taxes") any Taxes imposed on the Business ARC or the Transferred Entities with respect to Acquisition Sub by any Pre-Closing Tax Period (including taxing authority as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) Merger failing to qualify as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pretax-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in free reorganization within the meaning of Section 75 German 368(a) of the Code and all costs and expenses of Acquisition Sub or ARC (including, without limitation, all reasonable fees and disbursements of counsel) related to addressing or contesting such Taxes. The provisions of Sections 11.3 and 11.4 shall apply to all Tax Code Indemnity Claims to the same extent as if the term Tax Indemnity Claim were substituted for the term Acquisition Sub Indemnity Claim (Abgabenordnungor their respective plurals) imposed on Purchaserthroughout such sections; provided, an Affiliate however, that the Stockholders shall not be entitled to settle, either administratively or after commencement of Purchaser litigation, any Tax Indemnity Claim that would adversely affect the tax liabilities of ARC or a Transferred Entity Acquisition Sub for any taxable period ending after the Effective Time without the prior written consent of ARC. Notwithstanding the foregoing, any Tax Indemnity Claim shall be payable by the Stockholders only in the event, and to the extent, that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and the amount of the Tax Indemnity Claim exceeds $50,000. The provisions of this Section 11.7 shall survive until the 180th day after the sixth anniversary of the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) except with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable Indemnity Claims related to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes period for which Purchaser is liable under Section 8.01the applicable statute of limitations has been extended or waived beyond such date, provided that this Section 11.07(b) in which case these provisions shall not be construed as limiting any indemnity set forth in clause (v) survive until the 90th day after the expiration of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)such extension or waiver.
Appears in 1 contract
Tax Indemnification. (a) From The Sellers, jointly and after the Closing Dateseverally, Seller shall indemnify the Purchaser Indemnified Persons Buyer and its affiliates (including Xxxxx) and each of their respective directors, officers, employees, stockholders, agents and other representatives against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any liability for Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, Xxxxx for any Pre-Closing Tax Period, (ii) any liability for Taxes of the Sellers or any other person (other than Xxxxx) which is or has ever been affiliated with Xxxxx including any Israeli Taxes recognized as a result of the transactions contemplated by this Agreement, (iii) any liability for Taxes resulting from a characterization of Xxxxx as a controlled foreign corporation under Section 957(a) of the Code or treatment of Xxxxx as engaged in a U.S. trade or business under the Code and (iv) any Taxes liability for which a Transferred Entityreasonable legal, Purchaser accounting, appraisal, consulting or similar fees and expenses for any Affiliate of Purchaser is liable as a transferee or successor or by Contract item attributable to any item in clause (other than Contracts that do not primarily relate to Taxesi), in (ii) or (iii) above; provided, that the Buyer has used commercially reasonable efforts to materially comply with its obligations under Section 11(g). The Buyer shall, and after the Closing shall cause Xxxxx to, indemnify each caseSeller and its affiliates and each of their respective employees, agents and representatives against and hold them harmless from any liability for Taxes of Xxxxx for any taxable period ending after the Closing Date (except to the extent such taxable period began before the Closing Date, in which case the Buyer's indemnity will cover only that portion of any such Taxes that are attributable to not for the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a PostPre-Closing Tax Period solely or relates to actions that took place in the extent such subpart F Pre- Closing Tax Period that involved income is attributable to income or earnings taxable in Israel during the period that ends after the Closing Date). In the case of any taxable period that includes (but does not end on) the Closing Date (a Transferred Entity "Straddle Period"):
(i) real, personal and intangible property Taxes ("Property Taxes") of Xxxxx for a any Pre-Closing Tax Period (determined other than Taxes imposed in accordance connection with the principles set forth sale of the Shares or otherwise in Section 8.03(a))connection with this Agreement or the transactions contemplated hereby) shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, but excluding any the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of days in the Straddle Period; and
(ii) the Taxes of Xxxxx (other than Property Taxes) for the Pre- Closing Tax Period (other than Taxes imposed in connection with the sale of the Shares or otherwise in connection with this Agreement or the transactions contemplated hereby) shall be computed as if such inclusion that is attributable to actions taken taxable period ended as of the close of business on the Closing Date. The indemnity obligations of the Sellers in respect of Taxes for a Straddle Period shall equal the excess of (x) such Taxes for the Pre-Closing Tax Period over (y) the sum of (i) the amount of such Taxes for the Pre-Closing Tax Period paid by Purchaser the Sellers or any of its Affiliates after the Closing, affiliates (viother than Xxxxx) at any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, time and (viiiii) any German business the amount of such Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed paid by Xxxxx on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after prior to the Closing Date, Purchaser and the Transferred Entities shall. The Sellers, jointly and severally, indemnify shall initially pay such excess to the Seller Indemnified Persons and hold them harmless from Buyer five days prior to the date on which the Tax Return (including any Losses arising from, relating Tax Return with respect to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)estimated Taxes) with respect to any Post-Closing the liability for such Taxes is required to be filed (and if no such Tax PeriodReturn is required to be filed, except five days prior to the extent such Taxes are attributable date satisfaction of the Tax liability is required by the relevant taxing authority). The payments to be made pursuant to this paragraph by the Sellers with respect to a breach of Straddle Period shall be appropriately adjusted to reflect any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant final determination with respect to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)the Straddle Period.
Appears in 1 contract
Tax Indemnification. (a) From The Sellers severally (but not jointly) agree to indemnify the Purchaser from and against all Taxes due and payable by BSN (GP) and the BSN Group Companies in respect of the Relevant Tax Period and the S&N Sellers agree to indemnify the Purchaser from and against all Taxes due and payable by JV (Holding) in respect of the Relevant Tax Period, provided that if any Tax assessment periods (steuerliche Veranlagungs- bzw. Erhebungszeiträume) which cover part of the Relevant Tax Period end after the Transfer Date, the relevant Tax liability for the part of such assessment period up to the Transfer Date shall for the purposes of this Agreement be determined as if such partial period were a full assessment period, unless and except to the extent that such Tax liabilities:
(i) are taken into account as provisions as part of Net Working Capital as shown in the Transfer Balance Sheet, provided, however, that provisions for taxation (Line Item LP 52090. LPRNOI of the Transfer Balance Sheet) are only taken into account to the extent that the amount of such provisions (the “Actual Provision Amount”) exceeds the lower of (A) EUR 4.2 million and (B) the Actual Provision Amount minus the amount of income tax receivables (Line Item A 43000 of the Transfer Balance Sheet) (the “Expected Tax Accrual”);
(ii) are the subject of a valid and enforceable claim for repayment or indemnification against a third party; or
(iii) are the result of any voluntary act initiated by the Purchaser or any of its subsidiaries, associates or direct or indirect shareholders or, after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanRelevant Companies including, for the avoidance of doubt, changes in the accounting and taxation principles or practices of the Relevant Companies (including the methods of submitting taxation returns); or
(iv) can be offset against Tax loss carry backs or loss carry forwards that are or were available (including as contemplated a result of subsequent tax audits) in the period to which such taxes are allocable, whereby any use or reduction caused directly or indirectly by the Purchaser or, after the Closing Date, the Relevant Companies of such Tax loss carry back or loss carry forward shall be disregarded; or
(v) can be offset against future Tax reductions (Steuerminderungen) arising out of any circumstances triggering a Tax indemnification claim, e.g. resulting from the lengthening of depreciation periods or higher depreciation allowances (Phasenverschiebung); or
(vi) correspond to Tax advantages of any of the Relevant Companies or the Purchaser or any Affiliated Company; or
(vii) result from any non-compliance of the Purchaser or any of the Relevant Companies with any of their obligations under Section 11.01(a)(vi8.6; or
(viii) result from a change in Tax legislation or jurisdiction or administrative practice (Änderung der Verwaltungspraxis); or
(ix) with respect arise as a result of or would not have arisen but for any change in ownership of or the disposal (other than on liquidation whilst under the direct ownership of BSN Medical Limited) initiated by Purchaser or any Affiliated Company of the Purchaser or any of the Relevant Companies of any shares or securities of ALTER EGO Vierte Beteiligungsgesellschaft (“ALTER EGO”) at any time on or after Closing but within a period of 6 years of the transfer of any assets by ALTER EGO to BSN Medical Limited.
(b) Indemnification payments due by any Post-Closing Tax Period, except of the Sellers under this Section 8 shall be made within twenty (20) Business Days of the date upon which it is determined pursuant to this Agreement that such sums are due by such Seller (but no later than two (2) Business Days before such sums are due to the extent Taxing Authority), provided that the payment of such amounts to the Taxing Authority, is due and that the respective Seller shall not be required to make any payment earlier than two (2) Business Days before such Taxes are attributable due to a breach the Taxing Authority. In case of any representation set forth Tax being contested in accordance with Section 4.15(k8.6(b), payment of such Tax to the Taxing Authority will be considered due no earlier than on the date a final (bestandskräftig) determination to such effect is made by either the Taxing Authority or Section 4.15(l) a court of proper jurisdiction, provided that the Taxing Authority has granted relief from paying the assessed Tax until such Tax becomes final and binding. If this is not the case, the respective Seller shall make an advance indemnification payment to the Purchaser provided that the Purchaser provides a guarantee by a reputable Bank or other reasonably adequate security as security for any inaccuracy in Section 4.15(h) reimbursement claims of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised which might arise pursuant to Section 8.06(c))the subsequent sentence. If the final amount to be indemnified for Taxes and to be paid is lower than the advance indemnification payment by the Seller, (ii) any Taxes taken into account in then the adjustment described in Section 2.04difference shall be reimbursed by the Purchaser, (iii) any Taxes attributable to any breach or nonperformance including interest at the Agreed Rate and all interest earned thereon exceeding the Agreed Rate, if any, from the date of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) payment until the date of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)reimbursement.
Appears in 1 contract
Tax Indemnification. 6.2.1 The Sellers undertake that they will pay to Intersect an amount equal to the sum of
(a) From any Pre-Effective Date Taxes imposed on the Group Companies; and
(b) any Tax arising in connection with the termination of the ESOP to the extent paid or payable after the Effective Date by the Group Companies (any Tax to be indemnified under this Section 6.2 the "Indemnifiable Tax").
6.2.2 The indemnity contained in paragraph 6.2.1 shall not encompass any Indemnifiable Tax to the extent that:
(a) the aggregate amount of Indemnifiable Taxes paid or payable by the Group Companies after the Effective Date is less than the aggregate amount of provisions and reserves in respect of Taxes in the Effective Date Financial Statements provided that such provisions and reserves were considered in the calculation of the Purchase Price;
(b) the Indemnifiable Tax arises in connection with the termination of the ESOP and was considered in the calculation of the Purchase Price;
(c) the Indemnifiable Tax has been paid (including by way of a Tax pre-payment (Steuervorauszahlung) and/or set-off (Auf-/Verrechnung)) or discharged on or before the Effective Date;
(d) the Indemnifiable Tax has been recovered or is recoverable by a claim for repayment, reimbursement or indemnification against a party (e.g. an insurer) other than a Group Company;
(e) the Indemnifiable Tax results from income that could be offset against a Tax loss-carry back or loss carry forward actually available (or that would actually have been available but were forfeited due to a measure taken by the Purchaser or a Group Company after the Effective Date) at the level of the relevant Group Company and generated in periods or portions thereof ending on or before the Effective Date;
(f) the Indemnifiable Tax has arisen by reason of a change in legislation or regulations, made after the Effective Date (whether relating to Tax or otherwise) or any amendment to;
(g) the Indemnifiable Tax is caused by a retroactive reorganization of the Group Companies or the Intersect or any of its subsidiaries of whatsoever kind (i.e. transformation, merger and spin-offs under the laws of the countries having jurisdiction over the Group Companies as well as disposals of shares or contributions of assets) after the Effective Date which takes effect on Pre- Effective Date Period;
(h) the Indemnifiable Tax or its underlying circumstances have caused a Tax Benefit of the Group Companies; the Tax Benefit shall be calculated for a period of five (5) years starting after the Effective Date and discounted at a rate of 2.00%;
(i) Intersect has recovered any amount under this Agreement in respect of the same loss, damage, deficiency or Indemnifiable Tax;
(j) the Indemnifiable Tax is directly or indirectly caused or triggered by any change in the accounting and Taxation principles or practices of the Group Companies after the Closing Date unless required under mandatory law; or
(k) the Indemnifiable Tax is caused or increased by Intersect or any Affiliate of Intersect due to a breach of any of the Intersect’s obligations under this Agreement, including but not limited to any Indemnifiable Tax caused by a non-compliance of Intersect or, after the Closing Date of a Group Company, with the procedures set forth in Section 6.4 (without prejudice with regard to any rights of the Sellers arising out of such breach) or result from, or are increased by, a failure of Intersect or, after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as of a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each caseGroup Company, to the extent such Taxes are attributable mitigate damages pursuant to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any section 254 German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Civil Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser BGB).
6.2.3 Any payment under this Section 6.2 shall only be settled by set off pursuant to Section 1.10 or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after against the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating Claim Notice Escrow Account pursuant to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, Section 1.16; for the avoidance of doubt, as contemplated by the Sellers are not obliged to make any payments under this Section 11.01(a)(vi)6.2 if a set off pursuant to Section 1.10 or against the Claim Notice Escrow Account pursuant to Section 1.16 is not possible. The set off shall become effective on the day on which the Sellers receive a written set off declaration (Aufrechnungserklärung) with respect to any Post-Closing Tax Period, except which includes (i) information about the payment obligation and the corresponding payment date and all circumstances giving rise to the extent such Taxes are attributable to payment obligation pursuant and in accordance with this Agreement and (ii) a breach copy of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(hthe relevant Tax assessment notice (Steuerbescheid) of the Seller Disclosure Letter competent Tax Authority (as such Section or a copy thereof) and a detailed calculation of the Seller Disclosure Letter may be revised Indemnifiable Tax.
6.2.4 If an Indemnifiable Tax case is not finally assessed but Taxes are set-off pursuant to Section 8.06(c))6.2.3, (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations indemnification pursuant to Article VIIISection 6.2.3 shall be considered as an advanced payment to Intersect. If subsequently the Tax for which the advanced payment has been made is reduced again by way of Tax assessment or otherwise lowered, the difference between the higher advanced payment and the lower Tax liability shall be paid by the Purchaser to the Sellers including all interest related thereto (including any security payments (Sicherheitsleistung) disbursed by the Sellers)
(a) if the respective Tax is reduced by a Tax assessment within the Payment Period, on the date – immediately following the relevant Tax assessment – on which the next the Purchase Price instalment is due and payable, i.e. the Second Instalment Date, the Third Instalment Date or the Fourth Instalment Date, as the case may be;
(b) if the respective Tax was initially set off against the Claim Notice Escrow Account pursuant to Section 1.16 and is therefore reduced by a Tax assessment after the Payment Period, such difference shall be paid into, and kept in, the Claim Notice Escrow Account until the Claim Notice Escrow Account pursuant to Section 1.16.1(b) amounts to EUR 2,000,000 (iv) this maximum amount is to be reduced by any Transfer Taxes for which Purchaser is liable under Tax Refunds that reduced an Indemnifiable Tax pursuant to Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a6.3.2 after the Fourth Instalment Date) and beyond that amount such difference shall be paid by the Purchaser to the Sellers including all interest related thereto (including any security payments (Sicherheitsleistung) disbursed by the Sellers) without undue delay (unverzüglich); and
(c) without undue delay (unverzüglich) in all other cases (e.g. if the relevant Tax was initially set off pursuant to Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a1.10 and is reduced by a Tax assessment after the Payment Period).
Appears in 1 contract
Tax Indemnification. (a) From and after a. Following the Closing DateClosing, Seller shall indemnify the Purchaser Indemnified Persons against indemnify, defend and hold them the Buyer Indemnified Parties harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities and all Damages with respect to Taxes of the Transferred Subsidiaries for all Pre-Closing Tax Periods and (ii) any and all Damages arising out of, resulting from or incident to any breach by Seller of any representation or warranty in Section 5.15 or nonfulfillment of any covenant or obligation of Seller in Section 8, except to the extent that any such Damages are otherwise indemnified pursuant to the foregoing clause (i).
b. Following the Closing, Buyer shall indemnify, defend and hold the Seller Indemnified Parties harmless from (i) all liability for Taxes of the Transferred Subsidiaries for all Post-Closing Tax Periods and (ii) any and all Damages arising out of, resulting from or incident to any breach by Buyer of any covenant or obligation of Buyer in Section 8, except to the extent that any such Damages are otherwise indemnified pursuant to the foregoing clause (i).
c. In the case of any Straddle Period:
(i) real, personal and intangible property Taxes and any other Taxes levied on a per diem basis ("Per Diem Taxes") of the Transferred Subsidiaries allocable to a Pre-Closing Tax Period shall be equal to the amount of such Per Diem Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Period; and
(ii) the Taxes of the Transferred Subsidiaries (other than Per Diem Taxes) for any Pre-Closing Tax Period (including shall be computed as a result if such taxable period ended as of the Pre-close of business on the Closing Restructuring), (ii) any Date.
d. Seller's indemnity obligation in respect of Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on for a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, Period shall be effected by a release from the Indemnification Holdback Escrow Account an amount equal to the excess of (ivi) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined as evidenced by any Tax Return prepared in accordance with Section 8.3(a) or as otherwise indicated in a written notice prepared by Buyer) over (ii) the principles set forth in Section 8.03(a)), but excluding any amount of such inclusion that is attributable to actions taken Taxes paid by Purchaser Seller or any of its Affiliates after (other than the Closing, (viTransferred Subsidiaries) at any time plus the amount of such Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered paid by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. Transferred Subsidiaries on or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after prior to the Closing Date, Purchaser . Seller and Buyer shall cause such excess to be released to Buyer within ten (10) days after written demand is made by Buyer. If the amount of any such Taxes paid by Seller or any of its Affiliates (other than the Transferred Entities shall, jointly and severally, indemnify Subsidiaries) at any time plus the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect amount of (i) any such Taxes imposed on paid by the Transferred Assets, Subsidiaries on or prior to the Business or Closing Date exceeds the Transferred Entities (other than, amount of such Taxes for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any PostPre-Closing Tax Period, except Buyer shall pay to Seller the amount of such excess within ten (10) days after the Tax Return with respect to the extent final liability for such Taxes are attributable is required to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of be filed with the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)relevant Governmental Authority.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Farmland Industries Inc)
Tax Indemnification. (ai) From and after the Closing Date, Seller Sphinx shall indemnify the Purchaser Indemnified Persons against and hold them harmless the Arion Indemnified Parties from any Losses arising from, relating and against: (A) except to or otherwise in respect of, except as provided in the extent such Taxes are indemnified under Section 11.07(b6.9(a)(ii)(D), (i1) any Taxes of the Purchased Entities for all Pre-Closing Tax Periods, (2) Taxes imposed on the Business or the Transferred Entities with respect to the Purchased Assets for any Pre-Closing Tax Period and (including as a result of the Pre-Closing Restructuring), (ii3) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, respect to the Business for any Pre-Closing Tax Period, (ivB) Taxes arising out of any Taxes for which a Transferred Entity, Purchaser breach of any covenant made by Sphinx or any Affiliate of Purchaser is liable as a transferee its Subsidiaries in this Agreement or successor or by Contract any other Transaction Document, (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such C) Taxes are arising from and attributable to the operation Sphinx Pre-Closing Restructuring Steps (except for Transfer Taxes as provided for in Section 6.9(b)) or any other action taken by Sphinx and its Affiliates in order to effectuate or otherwise incurred in connection with the restructuring transactions contemplated in Section 2.8(a) hereof and (D) Taxes arising under Section 1.1502-6 of the Business Treasury Regulations or ownership any similar provision of the Transferred Assets state, local or foreign Law by virtue of any Purchased Entity having been a member of a consolidated, combined, affiliated, unitary or other similar tax group prior to the Closing, in each case excluding any (vx) any additional Taxes attributable to any “subpart F income” that would not have been incurred (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income that exceeds the Taxes that otherwise would have been incurred) but for (1) any breach of any covenant made by Arion or earnings any of a Transferred Entity for a Pre-Closing Tax Period its Affiliates or (determined in accordance with 2) any action taken outside the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken ordinary course of business by Purchaser Arion or any of its Affiliates after the Closing, Closing but on the Closing Date and (viy) any Taxes described in Section 6.9(a)(ii)(D) (relating to Requested Sphinx Restructuring Steps) or Section 6.9(a)(ii)(E) (relating to certain Taxes attributable to the Arion Pre-Closing Restructuring Steps) (collectively, the “Excluded Tax Liabilities”). Notwithstanding that a claim for Taxes or Losses may fall into multiple categories of this Section 6.9(a)(i), an Arion Indemnified Party may recover such Taxes and Losses one time only. Notwithstanding any other provision of this Agreement and for the avoidance of doubt, the limitations in Section 9.2 shall not apply to this Section 6.9(a)(i).
(ii) Arion shall indemnify and hold harmless the Sphinx Indemnified Parties from and against (A)(1) Taxes of the Purchased Entities for all Post-Closing Tax Periods, (2) Taxes imposed on the Purchased Assets for any Post-Closing Tax Period, (3) Taxes imposed on or with respect to the Business for any Post-Closing Tax Period, (B) Taxes arising out of any breach or violation of any covenant made by Arion or any of Seller’s representations set forth its Affiliates in Section 4.15any Transaction Document, (viiC) Taxes arising out of any German Trade Tax imposed action taken outside the ordinary course of business by Arion or any of its Affiliates after the Closing but on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser (D) Taxes arising from or attributable to any Requested Sphinx Restructuring Steps (except for Transfer Taxes as provided for in Section 6.9(b)), and (E) Taxes of the Transferred Entities shall, jointly Sphinx Indemnified Parties arising from or attributable to any Arion Pre-Closing Restructuring Steps (except for Transfer Taxes as provided for in Section 6.9(b)) or any other action taken by Arion and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating its Affiliates in order to effectuate or otherwise incurred in respect of connection with the restructuring transactions contemplated in Section 2.8(b) hereof (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanprovided that, for the avoidance of doubt, this clause (E) shall not take into account any Taxes from the transfer of the Purchased Assets or Purchased Entities hereunder and from any decisions by Arion or its Affiliates as contemplated by Section 11.01(a)(vito the jurisdiction or jurisdictions in which the Purchased Assets or Purchased Entities are transferred, including the transfer to Arion or any Other Arion Entity or otherwise)) with respect to , in each case, excluding any Post-Closing Tax Period, except additional Taxes that would not have been incurred (to the extent such that exceeds the Taxes are attributable to a that otherwise would have been incurred) but for any breach of any representation set forth in covenant made by Sphinx or any of its Affiliates and excluding any Taxes or other amounts subject to indemnification under Section 4.15(k6.9(a)(i) or Section 4.15(l9.1(a) or hereof. Notwithstanding that a claim for Taxes may fall into multiple categories of this Section 6.9(a)(ii), a Sphinx Indemnified Party may recover such Taxes one time only. Notwithstanding any inaccuracy other provision of this Agreement and for the avoidance of doubt, the limitations in Section 4.15(h) of the Seller Disclosure Letter (as such 9.2 shall not apply to this Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c6.9(a)(ii)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, .
(iii) With respect to the Business, in the case of any Straddle Period, the amount of Taxes attributable allocable to any breach the portion of the Straddle Period ending on the Closing Date shall be deemed to be (A) in the case of Taxes imposed on a periodic basis (such as real or nonperformance personal property Taxes), the amount of Purchaser’s obligations pursuant to Article VIIIsuch Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period) multiplied by a fraction, the numerator of which is the number of calendar days in the Straddle Period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire relevant Straddle Period and (ivB) any Transfer in the case of Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth described in clause (vA) (such as franchise Taxes or Taxes that are based on or related to income or receipts), the amount of Section 11.07(a) and Section 11.07(b)(i) any such Taxes shall not be construed determined as limiting any indemnity set forth in clause (vii) if such taxable period ended as of Section 11.07(a)the close of business on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Symantec Corp)
Tax Indemnification. (a) From and after the Closing DateClosing, Seller each Seller, jointly and severally with the other Sellers, shall be liable for and shall indemnify the Purchaser, its Affiliates (including the Company) and each of their respective officers, directors, employees, stockholders, agents and representatives (the “Purchaser Indemnified Persons Indemnitees”) against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any all liability for Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, Company for any the Pre-Closing Tax Period, (ivii) any Taxes for which all liability resulting from a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation breach of the Business or ownership of the Transferred Assets prior to the Closing, Sellers’ representations and warranties contained in Section 3.13 hereof and (viii) all liability for reasonable legal fees and expenses for any Taxes item attributable to any item in clause (i) and (ii) above.
(b) For purposes of determining the Sellers’ indemnity obligation pursuant to Section 8.1(a) hereof, in the case of any taxable period that includes (but does not end on) the Closing Date (a “subpart F income” Straddle Period”):
(including any increase thereto under Section 965 i) real, personal and intangible property Taxes (“Property Taxes”) of the Code) required to be included in income in a Post-Closing Tax Period solely to Company and its Subsidiaries for the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period shall equal the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of days in the Straddle Period; and
(determined in accordance with ii) the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special Company and its Subsidiaries (other than Property Taxes) for the Pre-Closing Tax Period shall be computed as if such taxable period ended as of the close of business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date.
(c) Unless the Sellers’ Representative, acting as agent for the Sellers notifies the Purchaser, within 20 Business Days following the Sellers’ Representative’s receipt of demand for payment that the Sellers’ Representative disputes its liability to a Purchaser Indemnitee under this Section 8.1, any indemnity payment to be made under this Section 8.1 shall be paid within 20 Business Days after the Purchaser Indemnitee makes written demand upon the Sellers’ Representative, but in no case earlier than five Business Days prior to the date on which the relevant Taxes are required to be paid to the relevant Taxing Authority (including as estimated Tax payments).
(d) This Section 8.1 shall constitute the Purchaser’s and each Seller’s exclusive remedy for any Loss suffered or incurred to the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses extent arising from, relating to or or, otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Taxes.
Appears in 1 contract
Tax Indemnification. 12.1.1 Subject to the provisions contained in this Clause 12, the Seller will pay to the Purchaser an amount equal to any Indemnifiable Tax (the “Tax Indemnification Claim”), provided that the Seller will not be liable vis-à-vis the Purchaser (and the Tax Indemnification Claim will be reduced accordingly) if and to the extent:
a) From the respective Tax has been paid until the Closing Date;
b) liabilities (Verbindlichkeiten) or provisions (Rückstellungen) for Taxes of the Med Companies that are included in the Closing Accounts for purposes of determination of the Purchase Price may be offset against the Tax Indemnification Claim irrespective of whether such liability or provision relates to the specific Tax giving rise to such claim;
c) the Purchaser, any Med Company or any of their Affiliates are entitled to any benefits in respect of Taxes that are related to the Tax Indemnification Claim and that arise for the time period (Zeitraum) beginning on or after the Closing Date, Seller shall indemnify including (without limitation) benefits resulting from the Purchaser Indemnified Persons against and hold them harmless from lengthening of any Losses arising fromamortization or depreciation periods, relating to a step-up in the Tax basis of assets or otherwise in respect of, except as provided in Section 11.07(bthe non-recognition of liabilities or provisions (Phasenverschiebung) (herein collectively “Tax Benefits”), it being understood that the net present value of the corresponding Tax Benefits will reduce the Tax Indemnification Claim. For the avoidance of doubt, the Parties agree that any step-up for Tax purposes of the assets owned by TM shall not be considered a Tax Benefit to the extent a step-up has already been made in the tax supplementary balance sheets (steuerliche Ergänzungsbilanzen) of the respective Purchaser as a consequence of the acquisition of the Partnership interests in TM. The net present value will be calculated (a) on the basis of the Tax rates applicable (or expected to be applicable) in the year in which the respective Tax Benefit arises, (b) for such periods (discount periods) in which the Tax Benefit can be realised, and (c) on the basis of an applied discount factor of 2 and a quarter (2.25) percent per annum;
d) the income resulting in the respective Tax may be offset against a loss carry-back or loss carry-forward available at the level of the Med Companies and generated in periods or portions thereof ending on or before the Closing Date;
e) the amount of Taxes results from (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring)change in law, (ii) any Taxes that are Retained Liabilities hereunderchange in the accounting or taxation principles or practices of the Med Companies (including methods of submitting Tax returns) introduced on or after the Closing Date, unless such change is required by applicable law, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 transaction, action or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, omission taken by the Purchaser or any Affiliate Med Company or any of their Affiliates on or after the Closing Date;
f) the respective Tax has been caused by a non-compliance of any Med Company, the Purchaser is liable as or any of their Affiliates with the procedures set forth in Clause 12.4 or 12.5; or
g) the amount of Taxes has been recovered from a transferee or successor or by Contract third party (other than Contracts that do not primarily relate to Taxesincluding under an insurance policy), in each case, . If and to the extent the amount of Taxes has not been recovered from a third party the Purchaser will assign any respective claim against such Taxes are attributable third party to the operation of the Business or ownership of the Transferred Assets prior Seller.
12.1.2 Any amounts payable to the Closing, Purchaser under this Clause 12.1 will be payable and due five (v5) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of Business Days before the Code) required to be included in income in a Post-Closing respective Tax Period solely is due and payable to the extent Tax authority but not earlier than ten (10) Business Days after the Seller has been notified by the Purchaser about such subpart F income is attributable to income or earnings due date. The Seller may request the filing of a Transferred Entity an application for a Pre-Closing Tax Period suspension of enforcement (determined Aussetzung der Vollziehung) at his expense. The Purchaser will ensure that such application is filed in accordance with the principles set forth in Section 8.03(a))Seller’s instructions. If, but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closingsettlement of the Purchaser’s claims under this Clause 12.1, (vi) any Taxes attributable the respective Tax is reduced before the Purchaser has paid the respective Tax to the Taxing Authorities, the Purchaser will pay to the Seller the amount of the respective Tax reduction. In so far, Clause 12.3 applies mutatis mutandis.
12.1.3 With regard to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered amounts payable by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of Purchaser under this Clause 12.1 the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable pro rata principle under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Clause 11.6 applies mutatis mutandis.
Appears in 1 contract
Samples: Share Purchase and Transfer Agreement (Hill-Rom Holdings, Inc.)
Tax Indemnification. (a) From After the Closing, Sellers and after the Closing DateXxxxxxx, Seller jointly and severally, shall indemnify the Purchaser Indemnified Persons against Buyer and its affiliates and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), all liability for Excluded Taxes; (ii) any Taxes that are Retained Liabilities hereunderliability, claim or damage suffered or incurred by any such indemnified party to the extent caused proximately by any breach of any representation or warranty contained in Section 4.01(i) or Section 4.01(j) or any certificate delivered pursuant to this Agreement to the extent related to such Section 4.01(i) or Section 4.01(j); (iii) any all liability for Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, Excluded Taxes of the U.S. Sellers and the Companies for any the Pre-Closing Tax Period, (iv) Sellers' share of prorated Taxes pursuant to Section 2.03 and Transfer Taxes pursuant to Section 3.03; and (v) all liability for expenses (including reasonable legal fees and expenses, except as otherwise provided in Section 10.07) incurred by Buyer attributable to clauses (i) through (iv) of this subsection (a); provided, however, that any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract liability under clause (other than Contracts that do not primarily relate to Taxes), in each case, ii) (but only to the extent such Taxes are attributable that the breached representation or warranty does not relate to an Income Tax, sales or use Tax, employment or payroll Tax (including withholding) or value added Tax) or (iii) above shall be subject to the operation limitations set forth in Section 10.02(b), except that such liability shall not be subject to the limits of Section 10.02(b)(ii).
(b) In the case of any Straddle Period, the portion of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Excluded Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with which are subject to indemnification by Sellers as Excluded Taxes to the principles extent set forth in Section 8.03(a10.01(a)), but excluding any ) shall be computed by using a closing-of-the-books method as if such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after taxable period ended on the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after date immediately preceding the Closing Date, Purchaser and except that any Excluded Taxes attributable to transactions not in the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect ordinary 57 course of (i) any Taxes imposed business occurring on the Transferred Assets, Closing Date before the Business or transfer of the Transferred Entities (other than, for Shares to Buyer shall be treated as attributable to the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any PostPre-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).
Appears in 1 contract
Samples: Purchase Agreement (Smucker J M Co)
Tax Indemnification. (a) From Section 10.5.1 Subsequent to the Closing, the Residual Holders shall jointly and after the Closing Date, Seller shall severally indemnify the Purchaser Indemnified Persons against Parent Covered Parties against, and hold them each of the Parent Covered Parties harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), : (i) any all Liability for Taxes imposed on of the Business or the Transferred Entities with respect to any Company for all Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax PeriodPeriods, except to the extent such Taxes are attributable included as current liabilities in the determination of the Final Closing Date Net Book Value Amount and (ii) any Indemnified Damages incurred by such Parent Covered Party that arise out of or relate to, whether directly or indirectly, to a any breach of any representation set forth or warranty contained in Section 4.15(k4.10, without regard to any qualification contained therein as to materiality, except to the extent that any such Indemnified Damages are otherwise indemnified pursuant to the foregoing clause (i) or are Taxes included as current liabilities in the determination of the Final Closing Date Net Book Value Amount. For purposes of this Section 4.15(l10.5, "Taxes" shall include the amount of Taxes that would have been paid but for (A) deductions attributable to the cashing out of Company Options pursuant to Section 2.6.6 on the Closing Date and (B) the application of any credit or net operating loss or capital loss deduction attributable to Post-Closing Tax Periods. In no event shall any inaccuracy Taxes resulting from Parent's or its Affiliates' making any election under Section 338 of the Code or comparable provisions of state, local or foreign tax laws with respect to the Merger (unless consented to by the Shareholders Representative in writing) be treated as Taxes attributable to a Pre-Closing Tax Period.
Section 4.15(h10.5.2 In the case of any Straddle Period: (i) real, personal and intangible property Taxes or other Taxes levied on a per diem basis (collectively, "Per Diem Taxes") of the Seller Disclosure Letter (as Company for a Pre-Closing Tax Period shall be equal to the amount of such Section Per Diem Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Period; and (ii) all other Taxes of the Company, including income, sale, use and payroll Taxes, for any Taxes taken into account in Pre-Closing Tax Period shall be computed as if such Tax Period ended as of the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance end of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)the day on the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Integra Lifesciences Holdings Corp)
Tax Indemnification. (a) From and after the Closing Dateand subject to the applicable limitations contained in Article XI and this Article XII, Seller the Parent Indemnified Parties shall indemnify be indemnified and held harmless solely out of the Purchaser Indemnified Persons Escrow, to the fullest extent permitted by applicable Law, from, against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) of any Taxes imposed on Damages to the Business extent actually incurred by the Parent Indemnified Parties and arising out of or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of any of the following:
(i) Taxes of the Company or its Subsidiaries for periods or portions thereof ending on or before the Closing Date (“Pre-Closing RestructuringTaxes”), ;
(ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) Parent Indemnified Party as a result of its inclusion with Sellerany breach of, or inaccuracy in, any Subsidiary Transferor representation or warranty set forth in Section 4.6;
(iii) Taxes or other payments required to be paid after the date hereof by the Company or any other Person (other than of its Subsidiaries to any party under any Tax Sharing Agreement or by reason of being a Transferred Entity) in a consolidated, combined successor-in-interest or unitary Tax group, for any Pre-Closing Tax Period, transferee of another entity; or
(iv) any Taxes for which breach of or failure to perform a Transferred Entity, Purchaser covenant or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation agreement of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles Company set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser 6.5 or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.6.10.
(b) From and after For the Closing Dateavoidance of doubt, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating pursuant to or otherwise in respect of (i) any Taxes imposed on the Transferred AssetsSection 11.2(e), the Business Former Company Securityholders’ obligation to indemnify for Taxes pursuant to Sections 12.1(a)(i) through 12.1(a)(iii) shall not require a duplicate payment of Tax amounts that have already been taken into account as current liabilities in the determination of Net Working Capital. Furthermore, notwithstanding anything to the contrary in this Agreement, for purposes of determining Damages actually incurred by the Parent Indemnified Parties pursuant to this Article XII, the loss of any Tax asset or the Transferred Entities Tax attribute (other than, or for the avoidance of doubt, any increased Tax Liability incurred by Parent as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) result of the Seller Disclosure Letter (as loss of such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach Tax assets or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(bTax attributes) shall not be construed treated as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Damages.
Appears in 1 contract
Samples: Merger Agreement (Cott Corp /Cn/)
Tax Indemnification. (a) From and after If the Closing Dateoccurs, Seller Parent, the Surviving Corporation and the Operating Company (the “Tax Indemnified Parties”) shall indemnify be entitled to be indemnified, initially from the Purchaser Indemnity Escrow Fund, against any and all Losses (“Indemnified Persons against and hold them harmless Tax Losses”) attributable to, arising from any Losses arising from, relating or related to or otherwise in respect of, except as provided in Section 11.07(b), (i) any all Taxes imposed on the Business (or the Transferred Entities with respect nonpayment thereof) of the Company and the Operating Company for all Tax periods ending on or before the Closing Date and the portion through the end of the Closing Date of any Tax period that includes (but does not end on) the Closing Date (each such Tax period or portion thereof hereinafter is referred to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any “Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes”), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any breach of, or inaccuracy in, the Tax Representations; provided, however, that in the case of clause (i) above, the Tax Indemnified Parties shall be entitled to indemnification only to the extent that the Indemnified Tax Losses exceed the amount, if any, reserved for such Taxes on the face of the Conclusive Statement and taken into account in determining Adjusted Net Working Capital. In the adjustment described in event that the Indemnity Escrow Fund is insufficient to pay a Parent Indemnified Party any amounts owed to such Parent Indemnified Party pursuant to this Section 2.049.5(a), (iii) any Taxes attributable each Company Holder shall, severally and not jointly, up to such Company Holder’s Allocable Proceeds and subject to any breach applicable limitations of this Article IX, indemnify and hold such Parent Indemnified Party harmless from and against the portion of such Loss not satisfied from the Indemnity Escrow Fund or nonperformance through Parent’s exercise of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)its set-off rights.
Appears in 1 contract
Tax Indemnification. (a) From Asahi will indemnify, defend and hold the Buyer and its affiliates harmless from and against (i) all liability for income Taxes of Quail for (A) any taxable period that ends on the Closing Date (B) the portion of any Straddle Period ending on the Closing Date and (C) to the extent that the Closing Date does not occur during 1999, all liability for income Taxes of Quail for 1999, and (ii) all liability (as a result of Treasury Regulation Section 1.1502-6(a) or comparable provisions of state or foreign law) for Taxes of Asahi or any other person (other than Quail) which is or has ever been affiliated with Quail, or with whom Quail otherwise joins or has ever joined (or is or has ever been required to join) in filing any consolidated, combined or unitary tax return, prior to the Closing. Notwithstanding the foregoing, Asahi will not indemnify, defend or hold harmless Buyer or any of its affiliates (including Quail) from any liability for Taxes attributable to any action taken after the Closing Dateby Buyer, Seller shall indemnify the Purchaser Indemnified Persons against any of its affiliates (including Quail), or any transferee of Buyer or any of its affiliates (other than any such action expressly required or otherwise expressly contemplated by this Agreement) (a "BUYER TAX ACT").
(b) Buyer will indemnify, defend and hold them Asahi and its affiliates harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) except to the extent Asahi is otherwise required to indemnify Buyer for such Tax pursuant to Section 7.7(a), all liability for Taxes of Quail for any taxable period, (ii) all liability for Taxes imposed on attributable to a Buyer Tax Act and (iii) all liability for Taxes attributable to an election by Buyer under Section 338 of the Business or Code with respect to the Transferred Entities purchase of the Quail.
(c) The obligations of each party to indemnify, defend and hold harmless the other party and other persons, pursuant to Sections 7.7(a) and 7.7(b), will terminate upon the expiration of all applicable statutes of limitations (giving effect to any extensions thereof), PROVIDED, HOWEVER, that such obligations to indemnify, defend and hold harmless will not terminate with respect to any individual item as to which an indemnified party shall have, before the expiration of the applicable period, previously made a claim by delivering a notice (stating in reasonable detail the basis of such claim) to the applicable indemnifying party.
(d) In the case of any Straddle Period:
(i) the periodic Taxes of Quail that are not based on income or receipts (E.G., property Taxes) for the portion of any Straddle Period ending on the Closing Date shall be computed based on the ratio of the number of days in such portion of the Straddle Period and the number of days in the entire taxable period;
(ii) Taxes of Quail for the portion of any Straddle Period ending on the Closing Date (the "PRE-CLOSING TAX PERIOD") (other than Taxes described in Section 7.7(d)(i) will be computed as if such taxable period ended as of the close of business on the Closing Date[, and, in the case of any Taxes of Quail attributable to the ownership by Quail of any equity interest in any partnership or other "flowthrough" entity as if a taxable period of such partnership or other "flowthrough" entity ended as of the close of business on the Closing Date]; and
(iii) Taxes of Quail for which a consolidated, combined or joint Tax Return is filed will be computed in accordance with the principles of Treasury Regulation Section 1.1502-76 as if separate returns had been filed for Quail for such Pre-Closing Tax Period and all prior taxable periods.
(including as a result of e) Any indemnity payment required to be made pursuant to this Section 7.7 will be paid within 30 days after the Pre-Closing Restructuring)indemnified party makes written demand upon the indemnifying party, (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other but in no case earlier than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, five business days prior to the extent date on which the relevant Taxes are required to be paid (or would be required to be paid if no such Taxes are attributable due) to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” relevant taxing authority (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing estimated Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(apayments).
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller Freeport LNG shall indemnify COP and its Affiliates (including the Purchaser Indemnified Persons against General Partner) and each of their respective officers, directors, employees, stockholders, agents and representatives and hold them harmless from any all Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), for (i) any Taxes imposed on the Business of or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 General Partner or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, Freeport LNG for any the Pre-Closing Tax Period, (ivii) any Taxes for which a Transferred Entity, Purchaser of Seller or any Affiliate of Purchaser is liable as a transferee or successor or by Contract other entity (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business General Partner) which is or ownership of the Transferred Assets prior to the Closinghas been affiliated with any Freeport Person, (viii) any Taxes attributable to a breach by any “subpart F income” Freeport Person of a representation, warranty or obligation under this Agreement or any other Transaction Document and (including any increase thereto iv) reasonably necessary legal fees and expenses incurred by COP in enforcing its rights under Section 965 clause (i), (ii) or (iii) above; provided that in the case of a Loss suffered by the General Partner itself that is described in clause (i) above, Freeport LNG shall indemnify COP only for 50% of the CodeLoss. All indemnity payments required by this Section 6.4(a) required shall be paid by Freeport LNG to be included in income in a Post-Closing Tax Period solely to COP regardless of the extent such subpart F income is attributable to income or earnings identity of a Transferred Entity the Person that suffered the Loss.
(b) In the case of any Straddle Period:
(i) Property Taxes of the General Partner and Freeport LNG for a the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period (determined the "Full Year Property Taxes") multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in accordance with the principles set forth Pre-Closing Tax Period and the denominator of which is the number of days in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, Straddle Period; and
(viii) any the Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special General Partner and Freeport LNG (other than Property Taxes) for the Pre-Closing Tax Period shall be computed as if such taxable period ended as of the close of business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date.
(c) Notwithstanding anything to the contrary, Purchaser Freeport LNG shall be liable for and shall pay any and all Taxes arising in connection with the Transferred Entities shall, jointly transfer of the GP Stock and severally, Freeport LNG shall indemnify the Seller Indemnified Persons and hold them harmless from COP for any Losses arising from, relating to or otherwise in respect of and all such Taxes.
(id) any Taxes imposed on the Transferred Assets, the Business All amounts paid by Freeport LNG or the Transferred Entities (other than, for General Partner under the avoidance terms of doubt, as contemplated by this Section 11.01(a)(vi)) with respect 6 shall be increased to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken take into account in the adjustment described in Section 2.04Tax, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIIIif any, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)resulting from such payment.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller 10.2.1 The Sellers shall indemnify the Purchaser Indemnified Persons from and against all Taxes if and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable they relate to the operation of Companies or the Business Participation and are allocable to a period ending on or ownership of the Transferred Assets prior to the ClosingEffective Date (or portions thereof) (such Taxes the Indemnified Taxes). With regard to Indemnified Taxes, each Seller will be severally (vbut not jointly) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 liable in the proportion that the registered share capital of the Code) required Company represented by the Shares of such Seller bears to the total registered share capital of the Company. With respect to Taxes relating to the Participation, the amount of the Indemnified Tax shall be included in income in a Post-Closing the amount of the relevant Tax Period solely (net of any limitation pursuant to Section 10.2.2 if and to the extent such subpart F income applicable) multiplied by the Company’s indirect shareholding percentage (durchgerechnete Beteiligung) as sold under this Agreement.
10.2.2 Sellers shall only be liable for Indemnified Taxes if and to the extent
(a) the Indemnified Tax is attributable to income or earnings of not a Transferred Entity for a Pre-Closing Tax Period (determined Audit Tax that decreased the Initial Purchase Price in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.3.1.1; and
(b) From and after the Closing Date, Purchaser and aggregate amount of the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of Taxes (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanincluding, for the avoidance of doubt, as contemplated by Section 11.01(a)(vithe Tax Audit Taxes) exceeds an amount of EUR 5,168,000; and
(c) none of the Companies nor the Participation has a valid, enforceable and recoverable claim for indemnification in relation to such Indemnified Tax against a third party (other than employees of any of the Companies except for those employees who hold a share in Seller 2 or Seller 3)) with respect to any Post-Closing Tax Period, except .
10.2.3 Sellers shall not be liable for Indemnified Taxes if and to the extent extent
(a) the Indemnified Tax is caused or increased by a reorganization or other measure initiated or executed after the Closing Date by the Purchaser or any of the Companies or the Participation provided such Taxes are attributable reorganisation or other measure legally relates to (i.e., has for tax purposes a retroactive impact – steuerlich rückwirkend—on) a period ending on or prior to the Effective Date (e.g., but not limited to, a change of the exercise of any Tax election rights which is made for a fiscal year which pertains to a breach period ending on or prior to the Effective Date, or a transaction which for tax purposes has a retroactive effect to a period ending on or prior to the Effective Date by operation of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) law); for the avoidance of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))doubt, (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b10.2.3 (a) shall not apply to any change in the transfer pricing policy for periods after the Effective Date, any reorganization of any of the Companies or the Participation which takes effect for Tax purposes only from a date after the Effective Date, or the request that a tax field audit is conducted; or
(b) the Indemnified Tax corresponds to or can be construed offset against future Tax reductions (Steuerminderungen) arising after the Effective Date at the level of the Purchaser or any of the Companies or the Participation and out of a circumstance having triggered a Tax indemnification claim, including but not limited to reciprocal effects (Wechselwirkungen) resulting e.g. from the extension of depreciation periods or higher depreciation allowances (Phasenverschiebung) or from transfer of items relevant for Indemnified Taxes (e.g. turnover, income, expenses, VAT payable corresponding with a VAT refund) into another calendar year or transfer of Tax items from one entity to another entity; if Sellers claim that there is a specific Tax reduction arising after the Effective Date at the level of the Purchaser or any of the Companies or the Participation out of the circumstance having triggered the Tax indemnification claim, there will be a rebuttable presumption (widerlegbare Vermutung) that the relevant circumstance gives rise to the claimed specific Tax reduction; it being understood that Purchaser’s Tax indemnification claim shall be reduced by the net present value of such Tax reduction determined as limiting any indemnity set forth in clause (v) at the time the respective Indemnified Tax is assessed, such net present value to be determined on the basis of Section 11.07(a) the Tax rate applicable at that time and Section 11.07(b)(i) a discount rate of 5 % p.a. For the avoidance of doubt, the Sellers shall not indemnify the Purchaser for Taxes other than the Indemnified Taxes.
10.2.4 Indemnification payments due by the Sellers under this Section 10 shall be construed as limiting any indemnity set forth in clause (vii) made three Business Days prior to the due date of Section 11.07(a)the Indemnified Tax but not earlier than ten Business Days following written notice by the Purchaser of the assessment of an Indemnified Tax by a Tax Authority or a court of proper jurisdiction and the Sellers have received a copy of the underlying Tax assessment.
Appears in 1 contract
Tax Indemnification. (a) From and after Except to the Closing Dateextent the following have been taken into account in determining the proration of payables or expenses pursuant to Section 1.11, Seller shall indemnify the Purchaser Indemnified Persons against will indemnify, defend and hold them Acquiror and its Affiliates harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) all Excluded Taxes, (ii) all Taxes resulting from or arising in connection with any breach by Seller or any member of the Seller Group of any of the representations and warranties contained in Sections 2.13 or any covenant in this Agreement, (iii) all Transfer Taxes for which Seller is responsible pursuant to Section 8.06 and (iv) all costs and expenses, including reasonable legal fees and expenses, attributable to any item in clauses (i) through (iii). Subject to Section 8.04(g), Seller’s obligation to indemnify, defend or hold harmless Acquiror or any of its Affiliates (including the Acquired Entities) from any Excluded Taxes pursuant to this Section 8.04(a) will terminate effective 30 days following the expiration of the applicable statute of limitations (including extensions).
(b) Except to the extent the following have been taken into account in determining the proration of payables or expenses pursuant to Section 1.11, Acquiror will indemnify, defend and hold Seller and its Affiliates harmless from and against (i) all Taxes imposed on the Business Acquired Entities or the Transferred Entities with respect to the other Acquired Assets for any Post-Closing Tax Period (except to the extent such Taxes are subject to indemnification pursuant to Section 8.04(a)), (ii) all Transfer Taxes for which Acquiror is responsible pursuant to Section 8.06, (iii) all Taxes resulting from or arising in connection with any breach by Acquiror or any member of the Acquiror Group of any covenant in this Agreement, and (iv) all costs and expenses, including reasonable legal fees and expenses, attributable to any item in clauses (i) through (iii). Subject to Section 8.04(g), Acquiror’s obligation to indemnify, defend or hold harmless Seller or any of its Affiliates from Taxes pursuant to this Section 8.04(b) will terminate effective 30 days following the expiration of the applicable statute of limitations (including extensions).
(c) In the case of any Straddle Period:
(i) Property Taxes and other periodic Taxes imposed on or with respect to the Acquired Entities or the other Acquired Assets (that are not based on income, receipts, services or transactions, including sales, use, withholding, payroll and other employment Taxes), allocable to the Pre-Closing Tax Period will be computed based upon the ratio of (A) the number of days in the portion of such Straddle Period ending on and including as a result the Closing Date to (B) the total number of the Pre-Closing Restructuring), days in such Straddle Period; and
(ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, the Acquired Entities for any the Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate Taxes subject to TaxesSection 8.04(c)(i), will be computed as if such Tax period ended as of the close of business on the Closing Date; provided, that exemptions, allowances or deductions that are calculated on an annual basis will be allocated between the portion of the Straddle Period ending as of the close of business on the Closing Date and the portion of the Straddle Period beginning after the Closing Date in proportion to the number of days in each casesuch portion.
(d) Any indemnity payment required to be made pursuant to this Section 8.04 will be made within 30 days after the Indemnitee makes written demand upon the Indemnifying Party, but in no case later than five Business Days prior to the date on which the relevant Taxes are required to be paid to the applicable Taxing Authority.
(e) If a claim or other Tax Proceeding is made or initiated by any Taxing Authority which, if successful, could result in an indemnity payment pursuant to Section 8.04 (a “Tax Claim”), the Party receiving notice of such Tax Claim will promptly notify the other Party in writing of such claim (and provide copies of any documents received from the Taxing Authority in respect of such claim) no later than ten Business Days after such Tax Claim is made; provided, that failure to provide such notice will not relieve such other Party of its indemnification obligations except to the extent that such Taxes are attributable other Party is materially prejudiced by such failure. With respect to any Tax Claim relating to a Tax period ending on or before the Closing Date, Seller will have the right, at its own expense, to participate in, and, upon notice to Acquiror, to assume the defense thereof. If Seller assumes such defense, Seller shall have sole discretion as to the operation conduct of the Business defense of such Tax Claim (including selection of counsel) and, without limiting the foregoing, may pursue or ownership forgo any and all administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect thereto, and may either pay the applicable Liability for Taxes and xxx for a refund or contest the Tax Claim). Without limiting the discretion of Seller to conduct the defense of such Tax Claim, (i) Seller will keep Acquiror reasonably informed of any material developments in such Tax Claim and consider any comments of Acquiror in respect of the Transferred Assets prior to the Closingconduct of such Tax Claim in good faith with counsel of its own choosing, at its own expense, and (vii) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely if and only to the extent such subpart F that a Tax Claim with respect to non-income is attributable Taxes would reasonably be expected to income or earnings increase the liability of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Acquiror or any of its Affiliates after the Closing, (vi) any for such non-income Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except Seller shall not settle any Tax Claim relating to an Acquired Asset without Acquiror’s consent, which shall not be unreasonably withheld, conditioned or delayed.
(f) Acquiror will control all Tax Claims with respect to Straddle Period Tax Returns of the Acquired Entities required to be prepared by Acquiror pursuant to Section 8.01(a); provided, however, that in the case of any such Tax Claim, Acquiror will not settle, compromise or abandon any such Tax Claim without the prior written consent of Seller, which consent will not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, Acquiror will control all Tax Claims with respect to Taxes of or with respect to an Acquired Entity or the other Acquired Assets for any Tax period beginning on or after the Closing Date.
(g) Without limiting Acquiror’s right with respect to any Tax Claims described in clauses (e) and (f) above, if any Tax Reduction Proceeding (or any claim or application with respect thereto) is pending as of the Closing Date that is for any fiscal period that includes or precedes the Closing Date, neither Seller nor Acquiror shall have the right to enter into any settlement or compromise of any claim with respect to such Tax Reduction Proceeding (or such claim or application) without the other party’s prior written consent (not to be unreasonably withheld, conditioned or delayed) to the extent such action would reasonably be expected to increase the Property Taxes are attributable for any Transferred Site.
(h) Notwithstanding anything herein to a breach the contrary, indemnification for any and all Tax matters in respect of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of this Agreement, and the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may procedures with respect thereto, will be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to governed exclusively by this Article VIII, and the provisions of Article VII (ivexcept for Sections 7.03(b), 7.05(b), 7.06, 7.08 and 7.09) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall will not be construed as limiting any indemnity apply. The representations and warranties set forth in clause Sections 2.13 and the provisions of this Article VIII will survive the Closing Date until 30 days following the expiration of the applicable statute of limitations (v) of Section 11.07(a) and Section 11.07(b)(i) shall not including extensions); provided, however, that the right to be construed as limiting indemnified with respect to any indemnity matter set forth in clause this Section 8.04 for which notice was provided within 30 days following the expiration of the relevant statute of limitations will survive until such matter is fully resolved.
(viii) Notwithstanding anything herein to the contrary, Seller will have no obligation to indemnify Acquiror or any of its Affiliates or equity holders for any Losses attributable to, in respect of or arising out of the status of Acquiror (or its failure to qualify) as a “real estate investment trust” within the meaning of Section 11.07(a)856 of the Code.
Appears in 1 contract
Samples: Transaction Agreement (Equinix Inc)
Tax Indemnification. All the provisions of this Agreement shall survive the Closing, notwithstanding any investigation at any time made by or on behalf of any party hereto, provided that the representations and warranties set forth in ARTICLE 3 and ARTICLE 4 and in any certificate delivered in connection herewith with respect to any of those representations and warranties shall terminate and expire on the first day of the 18th month following the month in which Closing occurs, except (a) From the representations and warranties of the Contributing Parties set forth in Section 3.10 shall survive until 30 days after the expiration of the applicable statutes of limitations (including all periods of extension and tolling), (b) the representations and warranties of the Contributing Parties set forth in Section 3.11 and Section 3.15 shall terminate and expire on the third anniversary of the Closing Date, Seller (c) the representations and warranties of the Contributing Parties set forth in Section 3.1, Section 3.2 and Section 3.4 shall indemnify survive forever and (d) the Purchaser Indemnified Persons against representations and hold them harmless from warranties of the Partnership Parties set forth in Section 4.1 and Section 4.2 shall survive forever. After a representation and warranty has terminated and expired, no indemnification shall or may be sought pursuant to this ARTICLE 9 on the basis of that representation and warranty by any Losses arising fromPerson who would have been entitled pursuant to this ARTICLE 9 to indemnification on the basis of that representation and warranty prior to its termination and expiration, relating to or otherwise provided that in respect of, except the case of each representation and warranty that shall terminate and expire as provided in this Section 11.07(b9.4, no claim presented in writing for indemnification pursuant to this ARTICLE 9 on the basis of that representation and warranty prior to its termination and expiration shall be affected in any way by that termination and expiration. The indemnification obligations under this ARTICLE 9 or elsewhere in this Agreement shall apply regardless of whether any suit or action results solely or in part from the active, passive or concurrent negligence or strict liability of the indemnified party. The covenants and agreements entered into pursuant to this Agreement to be performed after the Closing shall survive the Closing. Each indemnified party hereunder agrees that promptly upon its discovery of facts giving rise to a claim for indemnity under the provisions of this Agreement, including receipt by it of notice of any demand, assertion, claim, action or proceeding, judicial or otherwise, by any third party (such claims for indemnity involving third-party claims being collectively referred to herein as the “Indemnity Claim”), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including matter as to which it claims to be entitled to indemnity under the provisions of this Agreement, it will give prompt notice thereof in writing to the indemnifying party, together with a result statement of such information respecting any of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on foregoing as it shall have. Such notice shall include a Transferred Entity (including any Taxes imposed formal demand for indemnification under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate this Agreement. If the indemnified party knowingly failed to Taxes), in each case, to notify the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined indemnifying party thereof in accordance with the principles set forth provisions of this Agreement in Section 8.03(a))sufficient time to permit the indemnifying party or its counsel to defend against an Indemnity Claim and to make a timely response thereto, but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Sellerindemnifying party’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, indemnity obligation relating to such Indemnity Claim shall be limited to the extent that such failure has actually prejudiced or otherwise in respect of (i) any Taxes imposed on damaged the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) indemnifying party with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Indemnity Claim.
Appears in 1 contract
Samples: Contribution Agreement
Tax Indemnification. (a) From and after the Closing Date, Seller Sellers shall indemnify the Purchaser Indemnified Persons against and hold them harmless (freistellen) Purchaser, or at the election of Purchaser, the respective Target Group Company from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against:
(i) any liability for any Taxes imposed relating to time periods prior to or arising on the Business or Closing Date (for the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result avoidance of doubt for interest and penalties also for the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and period after the Closing Date if they are assessed on Taxes until and including the Closing Date), Purchaser and whereby such indemnification shall only apply if Taxes are actually levied on any of the Transferred Entities shallTarget Group Companies or a legal successor, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanbut not, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) if any increased taxable income may be set-off against tax loss carry forwards until the Closing Date; with respect to Taxes payable for a Tax period (Veranlagungszeitraum/Erhebungszeitraum) which begins prior to the Closing Date and which ends after such date (a “Straddle Period”), the portion of such Taxes allocable to the period prior to the Closing Date shall be computed as if this period until Closing Date was a separate fiscal year (however with respect to interest/ Tax loss carry forwards and ongoing Tax losses the transactions contemplated by this Agreement and a potential forfeiture of those losses shall be considered in such a Straddle Period); and
(ii) any Post-Closing damage resulting from a breach of the Tax Period, except warranty provided in Section 8.20.
(b) Seller’s obligation set out in Section 7.1(a) does not apply if and to the extent such Taxes:
(i) have been paid by any Target Group Company before Closing or accrued for as Tax liabilities/provisions in the Closing Accounts irrespective of whether such liability or provision relates to the specific Taxes giving rise to such claim;
(ii) have been recovered, or are attributable recoverable through commercially reasonable efforts, by Purchaser or any of the Target Group Companies from any third party (particularly under an insurance policy), but only in the net amount after Taxes in case the recovery is taxable;
(iii) result from a change of accounting methods for Taxes or practices for Taxes by Purchaser or Target Group Companies after the Closing Date that relate to a breach the period before the Closing Date unless such change, Taxation or practice is required by Law for periods prior to the Closing Date;
(iv) are the result of any representation set forth in Section 4.15(kreorganization, restructuring, transformation, change of corporate form or action of Purchaser and/or the Target Group Companies after the Closing Date with retroactive effect prior to the Closing Date;
(v) correspond to or Section 4.15(l) can be offset against reductions, refunds or any inaccuracy in Section 4.15(h) other kind of savings of Taxes, inter alia, due to the lengthening of depreciation periods or higher depreciation allowances or from a transfer of taxable items or events from one calendar or fiscal year into another or from one legal entity to another (together the “Tax Benefits”); it being understood that the net present value of the Seller Disclosure Letter Tax Benefit shall be considered if it materializes within five (as such Section 5) years after the Closing Date and that the net present value shall be calculated on the basis of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), Tax rates applicable at the Closing Date and an applied discount factor of five (5) per cent per annum. For the avoidance of doubt: (i) quasi permanent effects; (ii) any Taxes taken into account in Tax Benefits that relate to a step-up triggered by the adjustment described in Section 2.04, execution or consummation of this Agreement and/or the termination of the Silent Partnership; and (iii) a reduction of the step-up which otherwise would have been triggered by the execution or consummation of this Agreement and/or the termination of the Silent Partnership shall not be considered;
(vi) the respective Taxes have been caused by a material non-compliance of any Taxes attributable to Target Group Company, Purchaser, or any breach of their Affiliates after the Closing Date with the procedures set forth under this Agreement; or
(vii) result from income that may be offset against a loss-carry back or nonperformance loss carry forward available at the level of the relevant Target Group Company and generated in periods or portions thereof ending on or before the Closing Date.
(c) Indemnification payments made by Sellers under Section 7.1(a) shall become due on the tenth (10th) Business Day after Sellers’ receipt of Purchaser’s obligations pursuant written notice that a Tax liability to Article VIIIbe indemnified has occurred (including notification about the corresponding payment date and a copy of the underlying Tax assessment or payment order), and (iv) any Transfer but in no case earlier than ten days before the date at which the underlying Tax becomes due for payment. Purchaser shall procure at Seller’s cost that the Target Group Companies undertake commercially reasonable efforts at Sellers’ expense to achieve a deferred payment date, in par- ticular but not limited to the application for a suspension of enforcement of tax payment obligation or equivalent application in foreign jurisdiction, to the extent legally available, unless instructed otherwise by Sellers. If the amount of Taxes for which an indemnification payment has been made is subsequently reduced, the difference between the higher indemnification payment and the lower amount of Taxes shall be reimbursed by Purchaser is liable under to Sellers, including all interests after Taxes (net) related thereto. Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a7.4(c) and Section 11.07(b)(i10.10 shall apply mutatis mutandis to the existence of over indemnification and the reimbursement obligation of Purchaser.
(d) Any payments made pursuant to this Section 7.1 shall not be construed as limiting made free of any indemnity set forth in clause (vii) of Section 11.07(a)withholding or deduction save where such withholding or deduction is required by Law.
Appears in 1 contract
Tax Indemnification. (ai) From Seller agrees to be responsible for and after to indemnify and hold Purchaser and the Company harmless from and against any and all Taxes that may be imposed upon or assessed against Company or the assets of Company (A) with respect to Income Taxes, for all taxable periods ending on or prior to the Closing Date, Seller shall indemnify including without limitation any Income Tax resulting from the Purchaser Indemnified Persons against and hold them harmless from any Losses Section 338(h)(10) Election; (B) arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result by reason of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation by Seller of any of Seller’s the representations set forth contained in Section 4.15, (vii3(g) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains hereof or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmenits covenant under Section 7(h) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, hereof; and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)C) with respect to any Post-increase in Income Taxes for a taxable period beginning after the Closing Tax Period, except Date solely by reason of the failure by a Taxing Authority to recognize the extent such Taxes are attributable to a breach allocation of any representation revenue and expense set forth in the last sentence of Section 4.15(k7(c)(iv) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), hereof.
(ii) Purchaser agrees to indemnify and hold harmless Seller from and against any and all Taxes taken into account in that may be imposed upon or assessed against Seller as to the adjustment described in Business (A) with respect to Income Taxes, for all taxable periods beginning after the Closing Date; (B) with respect to all other Taxes, for all taxable periods beginning after the Balance Sheet Date; (C) arising by reason of a breach by Purchaser of its covenants under Section 2.04, 7(a)(ii) hereof; and (iiiD) any Taxes attributable with respect to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer increase in Income Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity a taxable period ending on or prior to the Closing Date solely by reason of the failure by a Taxing Authority to recognize the allocation of revenue and expense set forth in clause (v) the last sentence of Section 11.07(a7(c)(iv) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)hereof.
Appears in 1 contract
Samples: Stock Purchase Agreement (United Industrial Corp /De/)
Tax Indemnification. (a) From The Sellers jointly and after the Closing Date, Seller severally shall indemnify the Purchaser Buyer Indemnified Persons against Parties and hold them harmless from and against, any Losses arising fromLoss, relating claim, liability, expense, or other damage attributable to or otherwise in respect of, except as provided in Section 11.07(b), (i) any all Taxes (or the non-payment thereof) imposed on the Business or Company for all taxable periods ending before the Transferred Entities with respect Closing Date and the portion through the end of the day prior to the Closing Date for any taxable period that includes (but does not end on) the Closing Date (“Pre-Closing Tax Period (including as a result of the Pre-Closing RestructuringPeriod”), (ii) all Taxes of any Taxes that are Retained Liabilities hereundermember of an affiliated, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for group of which the Company (or any Pre-predecessor of the foregoing) is or was a member on or prior to the Closing Tax PeriodDate, (iviii) Taxes of any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable person imposed on the Company as a transferee or successor successor, by contract or by Contract (other than Contracts that do not primarily pursuant to any law, rule or regulation, which Taxes relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business an event or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after transaction occurring before the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) breach of the representations in Section 3.24 and (v) any Transfer Excluded Taxes. The applicable Buyer Indemnified Party shall provide a notice of claim for indemnification hereunder to Sellers’ Representative, which notice shall include evidence that such tax has been due and/or has been paid. Sellers shall indemnify the Buyer Indemnified Party within 5 days after receipt of notice. In the Sellers’ discretion, the Sellers may request such Buyer Indemnified Party to file a claim for refund with respect to such indemnified Taxes. Sellers shall bear the expenses of preparing and prosecuting such refund action. To the extent a refund with respect to such indemnified Taxes for which Purchaser paid by the Sellers is liable under Section 8.01actually recovered by a Buyer Indemnified Party, provided that such Buyer Indemnified Party shall pay such refund to the Sellers’ Representative within a reasonable time of receipt. The Sellers’ obligation to indemnify the Buyer Indemnified Parties pursuant to this Section 11.07(b6.02(a) shall survive the Closing until thirty (30) days following the expiration of the applicable statute of limitations; provided, that, if the Buyer Indemnified Parties provide the Sellers with notice of a claim to indemnify prior to the end of such period, the Sellers will still be obligated to indemnify the Buyer Indemnified Parties for such claim. Notwithstanding anything contained herein to the contrary, the Buyer Indemnified Parties shall be entitled to dollar-for-dollar indemnification from the first dollar and shall not be construed as limiting any indemnity set forth subject to the Sellers’ Basket or the Indemnity Cap Amount in clause (v) of seeking indemnification under this Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a6.02(a).
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Mac-Gray Corp)
Tax Indemnification. (a) From and after the Closing Date, The Seller shall indemnify indemnify, defend, and hold harmless the Purchaser Indemnified Persons Parties (including the Company and the Subsidiaries) from and against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any and all Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person member (other than the Company, or the Chicago Subsidiaries) of any affiliated, consolidated, unitary or other combined group with which the Company, or the Chicago Subsidiaries files or has filed a Transferred Entity) in Tax Return on a consolidated, unitary or other combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to basis during the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Relevant Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) the activities or Section 4.15(l) or any inaccuracy in Section 4.15(h) properties of the Seller Disclosure Letter (as such Section of Company, or the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))Chicago Subsidiaries, (ii) any Taxes taken into account in the adjustment described nature of penalties and interest imposed on the Purchaser Indemnified Parties (including the Company and the Subsidiaries) to the extent attributable to any breach of the representations contained in Section 2.043.09 or covenants in Section 6.01 of this Agreement, and Taxes attributable to the Relevant Period for the entity on which such Taxes are imposed, that are not Excluded Taxes and (iii) any loss, damage, liability or expense (including reasonable fees for attorneys and other outside consultants) incurred in contesting or otherwise in connection with any Taxes described in clause (i), (ii) or (iii) of this Section 6.03(a).
(b) The Purchaser shall indemnify the Seller Indemnified Parties against (i) any and all Taxes attributable to the activities or property of the Company or the Chicago Subsidiaries for which any Seller Indemnified Party become liable by reason of Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Tax Law); (ii) any Taxes in the nature of penalties and interest imposed on the Seller Indemnified Parties to the extent attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, the covenants contained in Section 6.01 of this Agreement; and (iviii) any Transfer loss, damage, liability or expense (including reasonable fees for attorneys and other outside consultants) incurred in contesting or otherwise in connection with any Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth described in clause (vi) or (ii) of Section 11.07(a6.03(b).
(c) and The amounts payable or to be paid under this Section 11.07(b)(i6.03 (the "Tax Indemnity Payments") shall not be construed as limiting any indemnity set forth limited in clause aggregate amount to the Purchase Price.
(viid) All Tax Indemnity Payments shall be paid in immediately available funds within five (5) Business Days after the later of Section 11.07(a)(i) receipt of a written request from the party entitled to such Tax Indemnity Payment; and (ii) the day of payment of the amount that is the subject of the Tax Indemnity Payment by the party entitled to receive such Tax Indemnity Payment.
Appears in 1 contract
Samples: Limited Liability Company Purchase Agreement (Macquarie Infrastructure Assets LLC)
Tax Indemnification. (a) From and after Following the Closing DateClosing, Seller shall indemnify the Purchaser Indemnified Persons against indemnify, defend and hold them the Buyer Indemnified Parties harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities and all Damages with respect to Taxes of the Transferred Subsidiaries for all Pre-Closing Tax Periods (provided that Seller shall not be liable for such Damages with respect to PLN and LLC if, on the date hereof, Buyer has Knowledge of such Damages, and, to the extent Buyer does not have such Knowledge, Seller shall only be liable for one-half of such Damages with respect to PLN and LLC) and (ii) any and all Damages arising out of, resulting from or incident to any breach by Seller of any representation or warranty in Section 5.14 or nonfulfillment of any covenant or obligation of Seller in Article VIII, except to the extent that any such Damages are otherwise indemnified pursuant to the foregoing clause (i).
(b) Following the Closing, Buyer shall indemnify, defend and hold the Seller Indemnified Parties harmless from (i) all liability for Taxes of the Transferred Subsidiaries for all Post-Closing Tax Periods and (ii) any and all Damages arising out of, resulting from or incident to any breach by Buyer of any covenant or obligation of Buyer in Article VIII, except to the extent that any such Damages are otherwise indemnified pursuant to the foregoing clause (i).
(c) In the case of any Straddle Period:
(i) real, personal and intangible property Taxes and any other Taxes levied on a per diem basis ("Per Diem Taxes") of the Transferred Subsidiaries allocable to a Pre-Closing Tax Period shall be equal to the amount of such Per Diem Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Period; and
(ii) the Taxes of the Transferred Subsidiaries (other than Per Diem Taxes) for any Pre-Closing Tax Period (including shall be computed as a result if such taxable period ended as of the Pre-close of business on the Closing Restructuring), Date.
(iid) any Seller's indemnity obligation in respect of Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on for a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, Period shall be effected by a release from the Indemnification Holdback Escrow Account of an amount equal to the excess of (ivi) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined as evidenced by any Tax Return prepared in accordance with Section 8.3(a) or as otherwise indicated in a written notice prepared by Buyer) which Seller is obligated to pay pursuant to Section 12.4(a) over (ii) the principles set forth in Section 8.03(a)), but excluding any amount of such inclusion that is attributable to actions taken Taxes paid by Purchaser Seller or any of its Affiliates after (other than the Closing, (viTransferred Subsidiaries) at any time plus the amount of such Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered paid by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. Transferred Subsidiaries on or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after prior to the Closing Date, Purchaser . Seller and Buyer shall cause such excess to be released to Buyer within ten (10) days after written demand is made by Buyer. If the amount of any such Taxes paid by Seller or any of its Affiliates (other than the Transferred Entities shall, jointly and severally, indemnify Subsidiaries) at any time plus the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect amount of (i) any such Taxes imposed on paid by the Transferred Assets, Subsidiaries on or prior to the Business or Closing Date exceeds the Transferred Entities (other than, amount of such Taxes for the avoidance Pre-Closing Tax Period which Seller is obligated to pay pursuant to Section 12.4(a), Buyer shall pay to Seller the amount of doubt, as contemplated by Section 11.01(a)(vi)such excess within ten (10) days after the Tax Return with respect to any Post-Closing Tax Period, except to the extent final liability for such Taxes are attributable is required to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of be filed with the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)relevant Governmental Authority.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Mississippi Chemical Corp /MS/)
Tax Indemnification. (aSubject to the limitations set forth in Section 12.3(c)(ii) From with respect to Buyer Indemnifiable Losses, Sellers shall jointly and after the Closing Dateseverally indemnify, Seller shall indemnify the Purchaser Indemnified Persons against defend and hold them harmless the Buyer Indemnitees from and against any Losses that Buyer Indemnitees may suffer, sustain or become subject to arising from, relating to or otherwise in respect out of, except as provided in Section 11.07(b), connection with or resulting from (i) any Taxes imposed on of the Business Acquired Entities or the Transferred Entities with respect to the Acquired Assets for any Pre-Closing Tax Period (including as a result and the portion of any Taxes of the Pre-Acquired Entities or with respect to the Acquired Assets for any Straddle Period that is allocable (determined in accordance with Section 8.1(c)) to the portion of the Straddle Period ending on the Closing Restructuring)Date, (ii) any Taxes that are Retained Liabilities hereunderarising by reason of any of the Acquired Entities being a member of any Consolidated Group on or prior to the Closing Date, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under pursuant to Treasury Regulations Section 1.1502-6 6(a) (or any corresponding predecessor or successor thereof or any analogous or similar provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) without duplication, the failure of any Taxes attributable of the representations and warranties contained in Section 4.10 to be true and correct in all respects (determined without regard to any breach qualifications related to materiality contained therein) or nonperformance of Purchaser’s obligations pursuant the failure to Article VIIIperform any covenant contained in this Agreement with respect to Taxes, and (iv) any failure by Coventry to timely pay its portion of Transfer Taxes for which Purchaser is liable under pursuant to Section 8.018.2(a) hereof. Notwithstanding the foregoing, provided that this Section 11.07(b) Coventry shall not be construed as limiting required to indemnify the Buyer Indemnitees, and Buyer shall indemnify and hold harmless the Seller Indemnitees, from any indemnity set forth in clause (v) Taxes to the extent resulting from any action taken by Buyer or the Acquired Entities after the Closing and on the Closing Date outside of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) the ordinary course of Section 11.07(a)business.
Appears in 1 contract
Tax Indemnification. (a) From Subject to the provisions contained in this Section 9 and after the Closing Datedefinition of Losses in Section 8.1 (a), Seller Sellers shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Pre-Effective Date Taxes imposed on (and any Losses related thereto) owed and payable (including by way of off-set) – regardless of whether arising from a breach of a Tax representation contained in Section 9.2 or from any other reason - by any Company (or its legal successor) following the Transferred AssetsEffective Date and (ii) any liability for Taxes – other than Pre-Effective Date Taxes already indemnified pursuant to Section 9.6 (a) (i) – (as well as any Losses relating thereto) incurred by any Company (or its legal successor) arising from a breach of a Tax representations contained in Section 9.2 (d), (e) or (f) (the Taxes and Losses referred to in (i) and (ii) each being referred to herein as a “Tax Loss”).
(b) Sellers’ indemnification obligation under Section 9.6 (a) (i) shall apply regardless of whether Purchaser or its representatives knew or could have known of the relevant matter. With respect to Sellers’ liability for a breach of any Tax representation pursuant to Section 9.6 (a) (ii), Section 8.3 shall apply.
(c) Section 8.1 (d) shall apply with respect to any indemnification payment made by Sellers pursuant to this Section 9.6. Sellers shall fulfill their obligation to indemnify and hold harmless within 10 Business Days after having received the demand and a copy of the respective document showing the obligation to pay the respective Tax, in no event, however, earlier than five Business Days prior to the due date of the respective Tax and provided that Sellers shall be entitled to pay, at their own risk, the Business or relevant Tax directly to the Transferred Entities (other than, for competent Taxing Authority in the name and on behalf of the respective Company. The Sellers’ indemnification obligation under this Section 9 shall include all disadvantages of Purchaser and the Companies that result from Sellers’ failure to fulfill their indemnification obligation in accordance with this Section 9.6. For the avoidance of doubt, as contemplated Sellers’ obligation to indemnify and hold harmless Purchaser and the Companies includes in particular, without limitation, the obligation to procure - if appropriate - adequate securities to the Taxing Authority in order to obtain suspension of payment obligations (e.g. in Germany Aussetzung der Vollziehung).
(d) Purchaser shall only be entitled to request any indemnification payment under this Section 9.6 if (i) the aggregate amount of all Tax Losses which would otherwise be indemnifiable by Sellers pursuant to this Section 11.01(a)(vi9.6 and has not yet been requested by Purchaser exceeds an amount of EUR 50,000 (in which case the entire amount shall be recoverable) or (ii) if the respective amount would otherwise become time-barred under Section 8.5 (c). If the amount requested by Purchaser is fully paid, the threshold of EUR 50,000 shall again be applicable for the next tranche which can be requested by Purchaser.
(e) with respect Purchaser’s indemnity claims under Section 9 shall exclusively be subject to, and limited by, the provisions of this Section 9, unless any provision of this Section 9 explicitly refers to any Post-Closing Tax Period, except other provision of this Agreement or vice versa.
(f) Sellers shall not be liable pursuant to this Section 9 to the extent that the Tax Loss is attributable (i.e. would not have arisen without such Taxes are attributable structuring change) to a breach change of the corporate structure of the Bakelite Group (including by any representation set forth transfer of a shareholding in Section 4.15(k) or Section 4.15(l) Bakelite or any inaccuracy in Section 4.15(hother Company) of after the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Closing.
Appears in 1 contract
Samples: Share Purchase Agreement
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) Subject to the limitations set forth in this Article VI, the Controlling Sellers will, severally and not jointly, indemnify IP and save and hold it harmless on a Proportionate Basis from and against any liability for Taxes imposed (other than Conveyance Taxes, as defined below) of BUSA and the BUSA Subsidiaries for all taxable periods ending on or before the Closing Date and the portion of any Straddle Period (as defined below) ending on the Business or the Transferred Entities with respect to any Closing Date (a "Pre-Closing Tax Period (including as a result Period"). For the purpose of such indemnification, IP's liability for Taxes shall be determined after the Pre-Closing Restructuring)proper application in accordance with the Code of any and all net operating losses, (ii) any Taxes that are Retained Liabilities hereundercapital losses, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision other carryforwards or carrybacks of state, local deductions or non-U.S. Tax Law) as a result credits of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) BUSA and the BUSA Subsidiaries arising in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) and the Controlling Sellers shall have no liability pursuant to this Section 6.8 for any Taxes for which a Transferred Entity, Purchaser reduction in net operating losses or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a carryforwards from Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable Periods to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and periods after the Closing Date. Further, Purchaser the Controlling Sellers shall not indemnify or hold harmless IP from or against any liability for Taxes until (1) the total of the Controlling Sellers' indemnification obligations pursuant to this Section 6.8(a)(i) without regard to this clause exceeds any amounts reserved for Taxes on the Final Statement (the amount of such excess being referred to as the "Recoverable Amount") and the Transferred Entities shall(2) such Recoverable Amounts, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from together with any Losses arising fromunder Section 6.2(i) hereof and any Losses under Section 6.9 hereof, relating to or otherwise exceed the Threshold Amount, in respect of (i) any Taxes imposed on the Transferred Assetswhich event IP shall be entitled, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except subject to the extent such Taxes are attributable to a breach of any representation other limitations set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy this Article VI, to recover only the aggregate amount of Losses and Recoverable Amounts in Section 4.15(h) excess of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).the
Appears in 1 contract
Samples: Stock Purchase Agreement (International Paper Co /New/)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating Subject to or otherwise in respect of, except as provided in Section 11.07(b12.4(c), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxx-Xxxxxx and Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shallFargo, jointly and severally, indemnify the Seller Indemnified Persons will indemnify, defend and hold them harmless the Newco Parties from and against any and all Xxxxx Fargo Indemnifiable Taxes and the Indemnifiable Losses relating to, resulting from or arising from, relating to or otherwise in respect out of (i) such Xxxxx Fargo Indemnifiable Taxes and any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except and all Indemnifiable Losses to the extent such Taxes are attributable to a breach relating to, resulting from or arising out of any representation breach by Xxxx-Xxxxxx or Xxxxx Fargo of the representations and warranties set forth in Section 4.15(k) or Section 4.15(l) or 4.13(b); provided that neither Xxxx-Xxxxxx nor Xxxxx Fargo shall have any inaccuracy in Section 4.15(h) -------- obligation to make any payment to any of the Seller Disclosure Letter Newco Parties pursuant to this Section 12.4(a) unless and until the aggregate amount of all claims arising pursuant hereto exceeds $250,000 and then only for the amount of such excess.
(as b) Subject to Section 12.4(c), after the Closing, the Loomis Stockholders Trust will indemnify, defend and hold harmless the Newco Parties from and against any and all Loomis Excluded Taxes and the Indemnifiable Losses relating to, resulting from or arising out of such Section Loomis Excluded Taxes and any and all Indemnifiable Losses to the extent relating to, resulting from or arising out of any breach by Loomis or Xxxxxx Armored of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, representations and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity warranties set forth in clause Section 5.14(d); provided that the Loomis Stockholders -------- Trust shall have no obligation to make any payment to any of the Newco Parties pursuant to this Section 12.4(b) unless and until the aggregate amount of all claims arising pursuant hereto exceeds $250,000 and then only for the amount of such excess.
(vc) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity The indemnification obligations set forth in clause (viithis Section 12.4 shall survive until the earlier of the second anniversary of the Closing Date and the consummation of the initial public offering of Newco Common Stock; provided, however, that any claim asserted by the relevant taxing authority -------- ------- prior to such time shall survive until paid or until there is a Final Determination that no portion of such claim is owed to such taxing authority. In the event that Xxxx-Xxxxxx or the Loomis Stockholders Trust, as applicable, objects to the calculation of any such indemnification obligations, such party shall, within 30 days of receipt of such claim, submit to Newco a written notice of objection thereto stating in reasonable detail the reason for such objection. In the event that the such party and Newco cannot come to a mutual agreement regarding the claim objected to by such party within 30 days after the receipt by Newco of written notice objecting to such claim, the matter shall be settled exclusively by arbitration in the manner set forth in Section 12.5(c) hereof. Any amounts due to Newco as a result of Section 11.07(a)such arbitration shall be paid promptly following the conclusion of such arbitration.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing DateClosing, Seller SPX shall indemnify Purchaser or, at the request of Purchaser, the Purchaser Indemnified Persons against Parties against, and hold them harmless harmless, from any Losses arising from, relating Damages (calculated after taking into account any payment of Income Taxes by SPX pursuant to or otherwise in respect of, except as provided in Section 11.07(b6.4(b), (i) by reason of any Income Taxes imposed on the Service Solutions Business or any Member of the Transferred Entities Service Solutions Group with respect to any Pre-Closing Tax Period Period. The obligation of SPX to indemnify Purchaser for such Income Taxes shall be without regard to whether there was any breach of any representation or warranty under Article II with respect to such Income Tax or any disclosures that may have been made with respect to Article II or otherwise. For purposes of this Section 11.3, all Damages shall be reduced by the correlative amount (including based on the tax rates in effect at the time for those future periods), if any, by which any Tax of the Purchaser Indemnified Parties is actually reduced for periods ending after the Closing Date as a result of the Pre-Closing Restructuring)such Damages. For purposes of this Section 11.3, (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes Income Tax imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation Member of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in Service Solutions Group for a Post-Closing Tax Period solely shall be treated as an Income Tax imposed with respect to a Pre-Closing Tax Period if such Income Tax (i) is the direct result of the application of Section 481 of the Code (or any similar provision of state, local, or foreign Tax Law) by reason of a change in accounting method employed prior to the extent Closing and (ii) is calculated with reference to the taxable income of such subpart F income is attributable to income or earnings Member of a Transferred Entity the Service Solutions Group for a Pre-Closing Tax Period (determined in accordance with Period. The parties’ obligations under this Section 11.3 shall survive the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates Closing and shall continue until 60 days after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale expiration of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) statute of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in limitations applicable to the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.relevant Taxes.
(b) From and Promptly, but in any event within 20 days, after Purchaser becomes aware of the Closing Dateexistence of a Tax issue that may give rise to an indemnification claim under this Article XI (a “Tax Controversy”) by any Purchaser Indemnified Party against SPX, Purchaser shall notify SPX of the Tax issue and thereafter shall promptly forward to SPX copies of the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless relevant portion of any notice or other document received from any Losses arising from, Governmental Authority and communications with any Governmental Authority relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assetssuch Tax Controversy; provided, the Business or the Transferred Entities (other thanhowever, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect that a failure to any Post-Closing Tax Periodgive such notice will not affect such Purchaser Indemnified Party’s rights to indemnification under this Article XI, except to the extent that SPX is actually prejudiced thereby.
(c) Notwithstanding anything to the contrary contained in this Agreement, SPX shall have the ability to elect to solely control and make all decisions regarding interests in any Tax audit, hearing, proposed adjustment, arbitration, deficiency, assessment, suit, dispute, claim or other administrative or judicial proceeding (a “Tax Contest”) relating to Income Taxes imposed on SS US, SS Germany, SS Australia, SS Japan or SS UK, in each case, for any taxable period ending on or before the Closing Date, including selection of counsel and selection of a forum for such Taxes are attributable to a breach contest, provided, however, that (i) Purchaser and SPX shall cooperate in the conduct of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))Tax Contest, (ii) any Taxes taken into account Purchaser shall have the right (but not the obligation) to participate in the adjustment described in Section 2.04(but not control) such Tax Contest, (iii) SPX shall keep Purchaser informed of all developments with respect to such Tax Contest on a timely basis, (iv) SPX shall not enter into any Taxes attributable agreement with the relevant taxing authority pertaining to any breach or nonperformance such Tax Contest without the written consent of Purchaser’s obligations pursuant to Article VIII, which consent shall not unreasonably be withheld, conditioned or delayed, and (ivv) Purchaser may, without the written consent of SPX, enter into such an agreement proposed by the relevant taxing authority, provided that Purchaser shall have agreed in writing to accept responsibility and liability for the payment of the applicable Income Taxes and to forego any Transfer indemnification or other claim under this Agreement with respect to such Income Taxes. Purchaser shall control the conduct and resolution of any Tax Contest relating to (x) non-Income Taxes of any Member of the Service Solutions Group, (y) Income Taxes for any taxable period ending on or before the Closing Date with respect to Members of the Service Solutions Group other than SS US, SS Germany, SS Australia, SS Japan and SS UK, and (z) Income Taxes with respect to a Straddle Period, provided, however, that (A) Purchaser and SPX shall cooperate in the conduct of each such Tax Contest, (B) SPX shall have the right (but not the obligation) to participate in (but not control) such Tax Contest, (C) Purchaser shall keep SPX informed of all developments with respect to such Tax Contest on a timely basis, (D) Purchaser shall not enter into any agreement with the relevant taxing authority pertaining to such Tax Contest without the written consent of SPX, which consent shall not unreasonably be withheld, conditioned or delayed, and (E) Purchaser may, without the written consent of SPX, enter into such an agreement, provided that Purchaser shall have agreed in writing to accept responsibility and liability for the payment of the applicable Taxes and to forego any indemnification or other claim under this Agreement with respect to such Taxes. In the event of any Tax Contest related to Taxes for which Purchaser has an indemnification obligation pursuant to Section 11.1(b)(iv), SPX shall (i) take commercially reasonable steps to defend any claim in excess of $25,000 related to such Taxes if there is liable under Section 8.01a mutually reasonable expectation of prevailing, provided that (ii) keep Purchaser informed of all developments with respect to such Tax Contest on a timely basis, and (iii) consider in good faith any comments of Purchaser with respect to the defense or settlement of such Tax Contest. Each party shall bear its own costs incurred in participating in any proceeding relating to any Tax Contest. Purchaser and SPX shall execute and deliver, or cause to be executed and delivered, such powers of attorney and other documents as may be necessary or appropriate to give effect to the foregoing.
(d) To the extent any provision of this Section 11.07(b) 11.3 is in conflict with any other provision in this Agreement, the provisions of this Section 11.3 shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)govern.
Appears in 1 contract
Tax Indemnification. (ai) From Pfizer shall indemnify, defend and after hold Purchaser and its Affiliates harmless from and against all liability for Taxes of the Conveyed Companies and Asset Selling Corporations (with respect to the Business) for any taxable period that ends on or before the Closing Date and the portion of any Straddle Period ending on the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against including (A) all liability for any breach of Pfizer’s representations and hold them harmless from any Losses arising from, relating to or otherwise warranties contained in respect of, except as provided in Section 11.07(b), Article V; (iB) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period all liability (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Regulation Section 1.1502-6 or 6(a) and any corresponding provision analogous provisions of state, local and foreign laws or non-U.S. Tax Lawotherwise) as a result for Income Taxes of its inclusion with Seller, any Subsidiary Transferor Pfizer or any other Person (other than a Transferred Entitythe Conveyed Companies) which is or has ever been affiliated with the Conveyed Companies, or with whom the Conveyed Companies otherwise join or have ever joined (or are or have ever been required to join) in a filing any consolidated, combined or unitary Tax groupReturn; and (C) all liability for reasonable legal, accounting and appraisal fees and expenses with respect to any item described in clause (A) or (B) above; provided, however, that Pfizer’s indemnity Back to Contents obligation for any PreTaxes pursuant to this Section 7.4(g)(i) shall be reduced by refunds of Taxes to which Pfizer is entitled pursuant to Section 7.4(e) (excluding carrybacks from post-Closing Tax Period, (ivDate years to the extent permitted under Section 7.4(d)) any Taxes for which a Transferred Entity, with respect to such periods received after the Closing Date by Purchaser or any Affiliate of its Affiliates and not previously remitted to Pfizer, whereupon Purchaser shall be entitled to retain such refund. Notwithstanding the foregoing, Pfizer shall not indemnify, defend or hold harmless Purchaser or any of its Affiliates from any liability for Taxes (a) attributable to (i) any election under any provision of the Code (including Section 338(g)) or any other action taken, (ii) any failure to comply with Law or (iii) any other failure to act which constitutes gross negligence or willful misconduct on the part of Purchaser or any of its Affiliates that (A) would otherwise give rise to a Pfizer Tax indemnity payment, (B) is liable as a transferee or successor or made by Contract Purchaser, any of its Affiliates (other than Contracts that do not primarily relate to Taxesincluding the Conveyed Companies), in each case, to the extent such Taxes are attributable to the operation or any transferee of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the ClosingClosing and (C) is not expressly required by applicable Law or this Agreement or otherwise expressly contemplated by this Agreement and has not been approved in writing by Pfizer (a "Purchaser Tax Act"); or (b) to the extent accrued or reserved against in the Working Capital Statement. Further, Pfizer’s obligation to indemnify, defend or hold harmless Purchaser or any of its Affiliates from any liability shall terminate at the close of business on the 180th day following the expiration of the applicable statute of limitations (giving effect to any waiver, mitigation or extension) or, if later, upon the final determination as a result of an audit or similar proceeding, in respect of the Tax liability in question.
(ii) Purchaser shall, and shall cause the Conveyed Companies to, indemnify, defend and hold Pfizer and its Affiliates harmless from and against, (viA) any except to the extent Pfizer is otherwise required to indemnify Purchaser for such Tax pursuant to Section 7.4(g)(i), all liability for Taxes of the Conveyed Companies; (B) all liability for Taxes attributable to any breach a Purchaser Tax Act, including all liability for Taxes resulting from Purchaser making an election under Section 338(g) of the Code with respect to its purchase or violation deemed purchase of any of Seller’s representations set forth the Conveyed Companies, including any additional Taxes arising as a result of a reduction in Section 4.15the amount of foreign tax credits and other Tax credits that are available to Pfizer (computed as if Pfizer did not utilize any foreign tax credits or other Tax credits, (vii) any German Trade net operating losses or other Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by attributes to reduce the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, additional Taxes); and (viiiC) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaserall liability for reasonable legal, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From accounting and after the Closing Date, Purchaser appraisal fees and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) expenses with respect to any Postitem described in clause (A) or (B) above; provided, however, that Purchaser's indemnity obligation for Taxes pursuant to this Section 7.4(g)(ii) shall be reduced by refunds of Taxes to which Purchaser is entitled pursuant to Section 7.4(e) that have been received by Pfizer and not previously remitted to Purchaser, whereupon Pfizer shall be entitled to retain such refund. Purchaser’s obligation to indemnify, defend or hold harmless Pfizer or any of its Affiliates from any liability shall terminate at the close of business on the 180th day following the expiration of the applicable statute of limitations (giving effect to any waiver, mitigation or extension) or, if later, upon the final determination as a result of an audit or similar proceeding, in respect of the Tax liability in question. Back to Contents
(iii) In the case of any Straddle Period:
(A) The periodic Taxes that are not based on income or receipts (e.g., property Taxes) for the portion of any Straddle Period ending on the Closing Date (the “Pre-Closing Tax Period”) shall be computed based upon the ratio of the number of days in the Pre-Closing Tax Period and the number of days in the entire Tax Period; and
(B) Taxes of the Conveyed Companies or Taxes with respect to the Business for the Pre-Closing Tax Period (other than Taxes described in Section 7.4(g)(iii)(A) above) shall be computed as if such taxable period ended as of the close of business on the Closing Date and, except in the case of any Taxes of the Conveyed Companies or Taxes with respect to the Business attributable to the ownership by the Conveyed Companies of any equity interest in any partnership or other “flowthrough” entity, as if a taxable period of such partnership or other “flowthrough” entity ended as of the close of business on the Closing Date.
(iv) Any indemnity payment required to be made pursuant to this Section 7.4(g) shall be made within 30 days after the indemnified party makes written demand upon the indemnifying party, but in no case later than three Business Days prior to the date on which the relevant Taxes are required to be paid to the relevant taxing authority (including estimated Tax payments).
(v) Any indemnity payment made pursuant to this Section 7.4(g) shall be treated as an adjustment to the price paid by Purchaser for the relevant Conveyed Company or Purchased Assets for Tax purposes to the extent such Taxes are attributable permitted under applicable Law, unless a final determination with respect to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) the indemnified party or any inaccuracy in Section 4.15(hof its Affiliates causes such payment to be treated other than as an adjustment to the purchase price for federal Income Tax purposes.
(vi) The rights and obligations of the Seller Disclosure Letter (as such parties with respect to indemnification for any and all Tax matters shall be governed by Section 7.4 of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, this Agreement and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) subject to the provisions of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) Article VIII of Section 11.07(a)this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cadbury Schweppes Public LTD Co)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior 11.5.1 Subsequent to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of each Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, shall indemnify the Seller Buyer Indemnified Persons Parties against, and hold them each of the Buyer Indemnified Parties harmless from any Losses arising from, relating to or otherwise in respect of : (i) any all Liability for Taxes imposed on of the Transferred Assets, the Business or the Transferred Entities (other than, Company for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Postall Pre-Closing Tax PeriodPeriods, except to the extent such Taxes are attributable to a breach of any representation set forth included as current liabilities in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) the determination of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c))Final Working Capital Amount, (ii) any Taxes taken into account in the adjustment described in Section 2.04Damages incurred by such Buyer Indemnified Party that arise out of or relate to, (iii) any Taxes attributable to whether directly or indirectly, any breach by the Sellers, the Member Representative or nonperformance their Affiliates of Purchaser’s obligations pursuant to any covenant contained in this Section 11.5 or Article VIII, and (iviii) any Transfer Damages incurred by such Buyer Indemnified Party that arise out of or relate to, whether directly or indirectly, any breach of any representation or warranty contained in Section 5.10 (without regard to any qualification contained therein as to materiality), except to the extent that any such Damages are otherwise indemnified pursuant to the foregoing clauses (i) or (ii) or are Taxes included as current liabilities in the determination of the Final Working Capital Amount. For purposes of this Section 11.5, “Taxes” shall include the amount of Taxes that would have been paid but for (A) income Tax deductions related to payments to the Appreciation Rights Holders at Closing pursuant to the Appreciation Rights Closure Agreements pursuant to Section 2.2 and (B) the application of any credit or net operating loss or capital loss deduction attributable to Post-Closing Tax Periods.
Section 11.5.2 In the case of any Straddle Period: (i) real, personal and intangible property Taxes or other Taxes levied on a per diem basis (collectively, “Per Diem Taxes”) of the Company for a Pre-Closing Tax Period shall be equal to the amount of such Per Diem Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which Purchaser is liable under the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Period; and (ii) all other Taxes of the Company, including income, sale, use and payroll Taxes, for any Pre-Closing Tax Period shall be computed as if such Tax Period ended as of the end of the day on the Closing Date.
Section 8.0111.5.3 The Sellers’ indemnification obligation for Taxes for a Pre-Closing Tax Period shall initially be effected by the payment to the Buyer of the excess of (i) the amount of Taxes due for such Pre-Closing Tax Period as evidenced by a Tax Return prepared in accordance with Section 8.1 or other appropriate documentation relating to the resolution of a Tax Claim over (ii) the amount of such Taxes paid by the Sellers at any time plus the amount of such Taxes paid by the Company on or prior to the Closing Date, provided that this Section 11.07(b) plus the amount of such Taxes included as a current Liability in the determination of the Final Working Capital Amount. In the case of any contested Tax, payment of the Tax to the appropriate Governmental Authority shall not be construed considered to be due earlier than the date a final determination with respect to such Tax Liability is made by the appropriate Governmental Authority or court.
Section 11.5.4 If a Governmental Authority shall make any claim relating to Taxes that, if successful, might result in an indemnification payment and/or offset pursuant to this Section 11.5 (a “Tax Claim”), the Buyer shall promptly and in any event no more than fifteen (15) days following receipt of such Tax Claim, give written notice of such Tax Claim to the Member Representative, together with copies of all notices and communications relating to such Tax Claim; provided, however, the failure of the Buyer to give such notice shall only relieve the Sellers from their indemnification obligations hereunder to the extent they are actually prejudiced by such failure.
Section 11.5.5 The Member Representative may elect to control all Proceedings at his own expense and may make all decisions with respect to any Tax Claim relating to a Tax Period (or portion thereof) ending on or prior to the Closing Date. Unless the Member Representative so elects, the Buyer shall control all Proceedings and may make all decisions with respect to any Tax Claim relating to a Tax Period (or portion thereof) ending on or prior to the Closing Date. The controlling party shall not settle any such Tax Claim without the other party’s (the Buyer or the Member Representative, as limiting any indemnity set forth in clause (vthe case may be) of Section 11.07(a) and Section 11.07(b)(i) consent, which shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Unit Purchase Agreement (Integra Lifesciences Holdings Corp)
Tax Indemnification. (a) From and after the Closing Date, Seller AT&T shall indemnify the Purchaser Indemnified Persons against and hold them harmless the BT Indemnified Parties and Thistle BV and other members of the Newco Group from and against any and all Losses relating to, arising out of or resulting from, relating or asserted by any third Person against any of the BT Indemnified Parties, Thistle BV or any other member of the Newco Group with respect to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any AT&T Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring)Taxes, (ii) any AT&T Consolidated Group Taxes and Taxes that are Retained constitute Excluded AT&T Liabilities hereunder, and (iii) any AT&T Transaction Gains Taxes imposed (other than Excluded Taxes); provided, that if (I) an audit adjustment for a period ending (or deemed to end) on or prior to the Closing Date either (x) gives rise to an indemnity obligation under this Section 25.5(a) or (y) constitutes an audit adjustment for a Transferred Entity member of the AT&T Consolidated Group other than a Contributed AT&T Subsidiary that results in an increase in tax basis of assets held by a member of the Newco Group, and (including any Taxes imposed under Treasury Regulations Section 1.1502-6 II) such adjustment is reasonably expected to reduce the taxable income of the Newco Group for a taxable year or any corresponding provision of state, local or non-U.S. Tax Law) period beginning after the Closing Date (such estimated reduction in taxable income referred to herein as a result "Post-Closing Tax Benefit"), then the amount required to be indemnified by AT&T pursuant to Section 25.5(a)(i) shall be reduced by the "net present value" of its inclusion such Post-Closing Tax Benefit in accordance with SellerSection 25.5(e).
(b) BT shall indemnify and hold harmless the AT&T Indemnified Parties and Thistle BV and other members of the Newco Group from and against any and all Losses relating to, arising out of or resulting from, or asserted by any Subsidiary Transferor third Person against any of the AT&T Indemnified Parties, Thistle BV or any other Person member of the Newco Group with respect to (i) BT Pre-Closing Taxes, (ii) BT Consolidated Group Taxes and Taxes that constitute Excluded BT Liabilities and (iii) BT Transaction Gains Taxes (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Excluded Taxes); provided, in each casethat, if (I) an audit adjustment for a period ending or deemed to the extent such Taxes are attributable to the operation of the Business end) on or ownership of the Transferred Assets prior to the Closing, Closing Date either (vx) any Taxes attributable gives rise to any “subpart F income” an indemnity obligation under this Section 25.5(b) or (including any increase thereto under Section 965 y) constitutes an audit adjustment for a member of the CodeBT Consolidated Group other than a Contributed BT Subsidiary that results in an increase in tax basis of assets held by a member of the Newco Group, and (II) required such adjustment is reasonably expected to be included in income result in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity Benefit for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser taxable year or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and period beginning after the Closing Date, Purchaser and then the Transferred Entities shall, jointly and severally, indemnify amount required to be indemnified by BT pursuant to Section 25.5(b)(i) shall be reduced by the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect "net present value" of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any such Post-Closing Tax Period, except Benefit in accordance with Section 25.5(e).
(c) No payment shall be required under Section 25.5(a)(i) or Section 25.5(b)(i) until the first calendar year in which either: (i) the Losses attributable to the extent such aggregate cumulative AT&T Pre-Closing Taxes are exceed the Losses attributable to the aggregate cumulative BT Pre-Closing Taxes by $20 million, in which case AT&T shall be required to make a breach payment pursuant to Section 25.5(a)(i) in an amount equal to the excess of any representation (x) the Losses attributable to the aggregate cumulative AT&T Pre-Closing Taxes over (y) the Losses attributable to the aggregate cumulative BT Pre-Closing Taxes; or (ii) the Losses attributable to the aggregate cumulative BT Pre-Closing Taxes exceed the Losses attributable to the aggregate cumulative AT&T Pre-Closing Taxes by $20 million, in which case BT shall be required to make a payment pursuant to Section 25.5(b)(i) in an amount equal to the excess of (x) the Losses attributable to the aggregate cumulative BT Pre-Closing Taxes over (y) the Losses attributable to the aggregate cumulative AT&T Pre-Closing Taxes. For each calendar year following the year in which the first payment is made under Section 25.5(a)(i) or Section 25.5(b)(i): (i) AT&T shall be required to make a payment pursuant to Section 25.5(a)(i) in an amount equal to the Losses attributable to the aggregate cumulative AT&T Pre-Closing Taxes as of such time, minus all amounts previously paid pursuant to Section 25.5(a)(i), minus the Losses attributable to the aggregate cumulative BT Pre-Closing Taxes as of such time, plus all amounts previously paid by BT pursuant to Section 25.5(b)(i), unless the amount so calculated is less than or equal to zero, in which case no payment shall be due under Section 25.5(a)(i); and (ii) BT shall be required to make a payment pursuant to Section 25.5(b)(i) in an amount equal to the Losses attributable to the aggregate cumulative BT Pre-Closing Taxes as of such time, minus all amounts previously paid pursuant to Section 25.5(b)(i), minus the Losses attributable to the aggregate cumulative AT&T Pre-Closing Taxes as of such time, plus all amounts previously paid by AT&T pursuant to Section 25.5(a)(i), unless the amount so calculated is less than or equal to zero, in which case no payment shall be due under Section 25.5(b)(i). In each case, the Losses attributable to the aggregate cumulative Pre-Closing Taxes shall be calculated from the Closing Date through the last day of the relevant calendar year, and the aggregate cumulative Pre-Closing Taxes shall include only those amounts for which a determination, as set forth in section 1313(a) of the Code or any equivalent provision of foreign, state or local law, has been made by the relevant Taxing Authority.
(d) The "net present value" of a Post-Closing Tax Benefit shall be determined by using a discount rate equal to 6.5%. For purposes of making this determination, the parents shall assume that a Post-Closing Tax Benefit shall be realized by the Newco Group at the time the relevant Tax Return is required to be filed for the taxable year or period in which such Post-Closing Tax Benefit is reasonably expected to be available and that the relevant member of the Newco Group is subject to tax at the maximum rate provided by law in the jurisdiction(s) in which it is subject to tax for such taxable year or period.
(e) In the event of any audit, administrative or judicial proceeding the outcome of which could result in an indemnification payment under Section 4.15(k25.5(a) or Section 4.15(l25.5(b) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)a "Tax Proceeding"), the parent who could be required to make an indemnification payment as a result of such Tax Proceeding (iithe "Tax Indemnifying Party") any Taxes taken into account in shall have the adjustment described in Section 2.04, (iii) any Taxes attributable right to any breach or nonperformance control the conduct of Purchaser’s obligations pursuant to Article VIIIsuch Tax Proceeding, and to employ counsel at its own expense; provided, however, the non-indemnifying parent (ivthe "Non-Indemnifying Party") any Transfer Taxes for which Purchaser is liable under Section 8.01shall have the right to participate in such Tax Proceeding at its own expense. Notwithstanding the foregoing, provided that this Section 11.07(b) the Tax Indemnifying Party shall not be construed as limiting entitled to settle any indemnity set forth in clause (v) such Tax Proceeding without the consent of Section 11.07(a) and Section 11.07(b)(i) the Non-Indemnifying Party, which consent shall not be construed as limiting unreasonably withheld. The only reasonable basis for withholding consent to any indemnity set forth in clause (vii) of Section 11.07(a)settlement shall be a non de minimis adverse Tax effect on such party.
Appears in 1 contract
Samples: Framework Agreement (At&t Corp)
Tax Indemnification. (ai) From and after Notwithstanding anything in this Agreement to the Closing Datecontrary, Seller shall indemnify the Purchaser Indemnified Persons against Buyer and hold them it harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (iA) any liability for Taxes imposed on the Business or the Transferred Entities (other than Buyer’s share of Transfer Taxes pursuant to Section 6.9(c)(iv)) with respect to the Acquired Assets, Taxes of the Transferred Subsidiaries and any Taxes of Seller imposed with respect to the Transferred Entities, in each case for all Pre-Closing Tax Period Periods, (including as a result B) all Tax liability resulting by reason of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a several liability of the Transferred Entity (including any Taxes imposed under Subsidiaries pursuant to Treasury Regulations Section 1.1502-6 or any corresponding similar provision of state, foreign state or local law or non-U.S. Tax Law) as by reason of the Transferred Subsidiaries ever having been a result member of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax groupgroup on or prior to the Closing Date, (C) all Taxes payable as a result of a breach of any representation or warranty contained in Section 4.10 and (D) any liability for its share of Transfer Taxes pursuant to Section 6.9(c)(iv).
(ii) The Acquirors shall indemnify Seller and hold it harmless from and against (A) any Preliability for Taxes with respect to the Acquired Assets, the Transferred Entities and the Transferred Subsidiaries for all Post-Closing Tax Periods, (B) any liability for its share of Transfer Taxes pursuant to Section 6.9(c)(iv) and (C) any liability for Taxes directly attributable to a breach by Buyer of its obligations under the Agreement.
(iii) In the case of a Straddle Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each caseBuyer and Seller shall, to the extent permitted by applicable law, elect with the relevant taxing authority to treat such taxable period for all purposes as a short taxable period ending as of the close of the Closing Date. In any case where applicable law does not permit such an election to be made, Taxes are attributable to the operation of the Business or ownership of for the Transferred Assets prior Straddle Period shall be allocated to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period using an interim closing-of-the-books method assuming that such taxable period ended at the close of the Closing Date, except that (determined A) exemptions, allowances or deductions that are calculated on an annual basis (such as the deduction for depreciation) shall be apportioned on a per-diem basis and (B) real property, personal property, intangibles and other similar ad valorem taxes shall be allocated in accordance with the principles set forth of Section 164(d) of the Code.
(iv) The parties hereto agree that, notwithstanding any provision to the contrary herein or in Section 8.03(a))the Ancillary Agreements, but excluding any Seller shall bear all Transfer Taxes up to $5,000,000 in the aggregate and all Transfer Taxes in excess of $5,000,000 shall be borne 50% by Buyer and 50% by Seller. Notwithstanding the foregoing, if and to the extent that the Transfer Taxes actually incurred exceed the Transfer Taxes that would have been incurred if the Assets were sold to Buyer entirely for cash, Seller shall bear the amount of such inclusion excess Transfer Taxes. Seller shall prepare and timely file all Tax Returns relating to such Taxes except for such returns that is are legally required to be filed by Buyer, in which case Buyer will prepare and file such returns.
(v) Notwithstanding anything in this Agreement to the contrary, Seller shall have no liability under this Agreement in respect of Taxes of the Business which are attributable to actions taken by Purchaser any action of the Transferred Subsidiaries and Transferred Entities, the Acquirors or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) their respective affiliates with respect to any Post-Closing Straddle Period that occurs after the Closing.
(vi) The parties hereto agree that any payments made pursuant to the indemnification provisions in this Section 6.9 or in Article IX are intended to be deemed to be an adjustment to the Cash Purchase Price and shall take no position to the contrary for any Tax Periodpurpose; provided however, except that to the extent that any taxing authority successfully characterizes, in a Final Determination, that any indemnification payments shall be deemed to be income to the party receiving such payments, then the party making such payments shall pay an additional amount to the party receiving such payments to cover appropriate Taxes are attributable thereon, and provided, further, that Seller in no event be liable to a breach indemnify or reimburse for any adjustment to the basis of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) asset as a result of an adjustment to the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable Cash Purchase Price under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)6.9.
Appears in 1 contract
Tax Indemnification. (a) From Subject to any of the limitations in this Section 7.10, from and after the Closing DateClosing, Seller the Company Stockholders and Participating Optionholders shall indemnify the Purchaser Indemnified Persons against Parent and its Affiliates and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any all Taxes imposed on the Business (or the Transferred Entities with respect to any Prenon-Closing Tax Period (including as a result payment thereof) of the Pre-Closing Restructuring)Acquired Companies for all taxable periods or portions thereof ending on or before the Closing, (ii) any and all Taxes that are Retained Liabilities hereunderof any member of an affiliated, consolidated, combined, or unitary group of which any of the Acquired Companies (iiior any predecessor of any of the foregoing) any Taxes imposed is or was a member on a Transferred Entity (or prior to the Closing, including any Taxes imposed under pursuant to Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local analogous or non-U.S. Tax similar Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to of any breach Person (other than the Acquired Companies) imposed on the Acquired Companies as a transferee or nonperformance of Purchaser’s obligations pursuant to Article VIIIsuccessor, by contract or otherwise, and (iv) any Transfer Taxes for which Purchaser is the Company Stockholders and Participating Optionholders are liable under Section 8.017.11; provided that, provided that Parent and its Affiliates shall only be entitled to indemnification with respect to the item disclosed on Schedule 4.12(b) to the extent the Damages arising from such item exceed the amount reserved for such item in the current liabilities shown on the face of the Most Recent Balance Sheet. No indemnification pursuant to this Section 11.07(b7.10(a) shall not be construed as limiting made with respect to a Tax directly attributable to any indemnity action taken by, or at the request of, the Parent or any of its Affiliates on the Closing Date outside of the ordinary course of business. Any liability of the Company Stockholders and Participating Optionholders pursuant to this Section 7.10(a) shall be determined and paid in accordance with the procedures and limitations set forth in clause Article X, except as otherwise provided in this Section 7.10. For the avoidance of doubt, recovery against the Escrow Account constitutes the first and primary remedy for any and all Tax Claims for so long as the Escrow Account is outstanding; provided that the Parent Indemnified Parties shall have the right to either (vx) of Section 11.07(arecover against the Escrow Account for any and all Tax Claims or (y) recover directly from the Company Stockholders and Section 11.07(b)(i) shall not be construed Participating Optionholders on a pro rata basis (based upon their respective Pre-Closing Percentages as limiting any indemnity set forth on the Final Allocation Schedule and subject to the limitations set forth in clause Section 10.04) for any and all Tax Claims and not utilize the Escrow Amount for such purpose, if and only to the extent that (vii1) an individual Tax Claim includes Damages in excess of Section 11.07(a)$100,000 or (2) all Tax Claims in the aggregate as of any given time include Damages in excess of $500,000.
Appears in 1 contract
Samples: Merger Agreement (DST Systems Inc)
Tax Indemnification. (ai) From and after Notwithstanding anything in this Agreement to the Closing Datecontrary, Seller shall indemnify the Purchaser Indemnified Persons against Buyer and hold them it harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (iA) any liability for Taxes imposed on the Business or the Transferred Entities (other than Buyer's share of Transfer Taxes pursuant to Section 6.9(c)(iv)) with respect to the Acquired Assets, Taxes of the Transferred Subsidiaries and any Taxes of Seller imposed with respect to the Transferred Entities, in each case for all Pre-Closing Tax Period Periods, (including as a result B) all Tax liability resulting by reason of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a several liability of the Transferred Entity (including any Taxes imposed under Subsidiaries pursuant to Treasury Regulations Section 1.1502-6 or any corresponding similar provision of state, foreign state or local law or non-U.S. Tax Law) as by reason of the Transferred Subsidiaries ever having been a result member of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax groupgroup on or prior to the Closing Date, (C) all Taxes payable as a result of a breach of any representation or warranty contained in Section 4.10 and (D) any liability for its share of Transfer Taxes pursuant to Section 6.9(c)(iv).
(ii) The Acquirors shall indemnify Seller and hold it harmless from and against (A) any Preliability for Taxes with respect to the Acquired Assets, the Transferred Entities and the Transferred Subsidiaries for all Post-Closing Tax Periods, (B) any liability for its share of Transfer Taxes pursuant to Section 6.9(c)(iv) and (C) any liability for Taxes directly attributable to a breach by Buyer of its obligations under the Agreement.
(iii) In the case of a Straddle Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each caseBuyer and Seller shall, to the extent permitted by applicable law, elect with the relevant taxing authority to treat such taxable period for all purposes as a short taxable period ending as of the close of the Closing Date. In any case where applicable law does not permit such an election to be made, Taxes are attributable to the operation of the Business or ownership of for the Transferred Assets prior Straddle Period shall be allocated to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period using an interim closing-of-the-books method assuming that such taxable period ended at the close of the Closing Date, except that (determined A) exemptions, allowances or deductions that are calculated on an annual basis (such as the deduction for depreciation) shall be apportioned on a per-diem basis and (B) real property, personal property, intangibles and other similar ad valorem taxes shall be allocated in accordance with the principles set forth of Section 164(d) of the Code.
(iv) The parties hereto agree that, notwithstanding any provision to the contrary herein or in Section 8.03(a))the Ancillary Agreements, but excluding any Seller shall bear all Transfer Taxes up to $5,000,000 in the aggregate and all Transfer Taxes in excess of $5,000,000 shall be borne 50% by Buyer and 50% by Seller. Notwithstanding the foregoing, if and to the extent that the Transfer Taxes actually incurred exceed the Transfer Taxes that would have been incurred if the Assets were sold to Buyer entirely for cash, Seller shall bear the amount of such inclusion excess Transfer Taxes. Seller shall prepare and timely file all Tax Returns relating to such Taxes except for such returns that is are legally required to be filed by Buyer, in which case Buyer will prepare and file such returns.
(v) Notwithstanding anything in this Agreement to the contrary, Seller shall have no liability under this Agreement in respect of Taxes of the Business which are attributable to actions taken by Purchaser any action of the Transferred Subsidiaries and Transferred Entities, the Acquirors or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) their respective affiliates with respect to any Post-Closing Straddle Period that occurs after the Closing.
(vi) The parties hereto agree that any payments made pursuant to the indemnification provisions in this Section 6.9 or in Article IX are intended to be deemed to be an adjustment to the Cash Purchase Price and shall take no position to the contrary for any Tax Periodpurpose; provided however, except that to the extent that any taxing authority successfully characterizes, in a Final Determination, that any indemnification payments shall be deemed to be income to the party receiving such payments, then the party making such payments shall pay an additional amount to the party receiving such payments to cover appropriate Taxes are attributable thereon, and provided, further, that Seller in no event be liable to a breach indemnify or reimburse for any adjustment to the basis of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) asset as a result of an adjustment to the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable Cash Purchase Price under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)6.9.
Appears in 1 contract
Samples: Purchase and Sale Agreement (International Paper Co /New/)
Tax Indemnification. (a) From and after the Closing Date, Seller shall Sellers agree to jointly and severally indemnify the Purchaser Indemnified Buyer, each Acquired Company and their respective Related Persons against and hold them harmless from (x) all Taxes on or with respect to the Acquired Companies with respect to any Losses arising fromtaxable period or portion thereof that ends on or before the Closing Date, relating in either case including, but not limited to, Taxes, if any, imposed on the Acquired Companies with respect to any such taxable period or otherwise in respect of, except portion thereof as provided in a result of the Section 11.07(b), (i338(h)(10) Elections and any Taxes imposed on the Business or the Transferred Entities Acquired Companies with respect to any Pre-Closing Tax Period such taxable period or portion thereof attributable to the Contemplated Transactions (including other than (i) Taxes to the extent taken into account in calculating the Final Determination, and (ii) those Taxes subject to Section 12.6 or the portion of Taxes allocated to Buyer pursuant to Section 12.2(d)) and (y) all Damages arising out of any Breach of any representation, warranty or covenant in Section 3.11 or this Section 12. For purposes of this Section 12.2(a), Taxes imposed as a result of the Pre-Closing Restructuring), (iiSection 338(h)(10) any Elections shall include Income Taxes that are Retained Liabilities hereunder, (iii) any and Taxes of a similar nature imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or gain recognized by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation virtue of the Business or ownership of the Transferred Assets prior to the Closing, (vSection 338(h)(10) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a))Elections, but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any shall not include Taxes attributable to any breach or violation of any of Seller’s representations set forth incurred in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.subsequent periods.
(b) From On and after the Closing Date, Purchaser Buyer shall indemnify Sellers for that portion of any increase in Seller's Income Tax liability resulting from an increased allocation of the purchase price to pre-publication costs of the Acquired Companies which results in the recognition by Sellers of more ordinary income and less capital gain than would be the Transferred Entities shallcase in the absence of such reallocation and any such increase in Income Tax liability shall be determined taking into account, jointly among other things, both the increased ordinary income and severallydecreased capital gain; PROVIDED, indemnify HOWEVER, such indemnity shall be limited to the Seller Indemnified Persons increase in Sellers' Income Tax liability which is attributable to the amount of purchase price allocated to such pre-publication costs in excess of $7.0 million. Any indemnification payment pursuant to the preceding sentence of this Section 12.2(b) shall be increased by an amount equal to the increase in Income Tax incurred by Sellers as a result of any payment pursuant to this Section 12.2(b) (including under this sentence).
(c) Payment by the indemnifying party of any amount due under this Section 12 shall be made within three (3) days following written notice by the indemnified party that payment of such amounts to the appropriate Governmental Body or other Person is due, but in no case shall such payment be paid more than five (5) business days prior to the date such amount is due to such Governmental Body or other Person.
(d) For purposes of this Agreement, in the case of any Tax that is imposed on a periodic basis and hold them harmless from any Losses arising fromis payable for a period that begins before the Closing Date and ends after the Closing Date, relating to or otherwise in respect the portion of such Taxes payable for the period ending on the Closing Date shall be (i) in the case of any Taxes imposed Tax other than a Tax based upon or measured by income, the amount of such Tax for the entire period multiplied by a fraction, the numerator of which is the number of days in the period ending on the Transferred Assets, Closing Date and the Business or denominator of which is the Transferred Entities (other than, for number of days in the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), entire period and (ii) any Taxes taken into account in the adjustment described in Section 2.04case of any Tax based upon or measured by income, the amount which would be payable if the taxable year ended upon the Closing Date, unless another method is prescribed by applicable Tax law. In the case of any Tax based upon or measured by capital (iiiincluding net worth or long-term debt) or intangibles, any Taxes attributable amount thereof required to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable be allocated under Section 8.01, provided that this Section 11.07(b12.2(d) shall not be construed as limiting any indemnity set forth in clause (v) computed by reference to the level of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)such items on the Closing Date.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating Subject to or otherwise in respect of, except as provided in Section 11.07(b12.4(c), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxx-Xxxxxx and Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shallFargo, jointly and severally, indemnify the Seller Indemnified Persons will indemnify, defend and hold them harmless the Newco Parties from and against any and all Xxxxx Fargo Indemnifiable Taxes and the Indemnifiable Losses relating to, resulting from or arising from, relating to or otherwise in respect out of (i) such Xxxxx Fargo Indemnifiable Taxes and any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except and all Indemnifiable Losses to the extent such Taxes are attributable to a breach relating to, resulting from or arising out of any representation breach by Xxxx-Xxxxxx or Xxxxx Fargo of the representations and warranties set forth in Section 4.15(k) or Section 4.15(l) or 4.13(b); provided that neither Xxxx-Xxxxxx nor Xxxxx Fargo shall have any inaccuracy in Section 4.15(h) obligation to make any payment to any of the Seller Disclosure Letter Newco Parties pursuant to this Section 12.4(a) unless and until the aggregate amount of all claims arising pursuant hereto exceeds $250,000 and then only for the amount of such excess.
(as b) Subject to Section 12.4(c), after the Closing, the Loomis Stockholders Trust will indemnify, defend and hold harmless the Newco Parties from and against any and all Loomis Excluded Taxes and the Indemnifiable Losses relating to, resulting from or arising out of such Section Loomis Excluded Taxes and any and all Indemnifiable Losses to the extent relating to, resulting from or arising out of any breach by Loomis or Xxxxxx Armored of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, representations and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity warranties set forth in clause Section 5.14(d); provided that the Loomis Stockholders Trust shall have no obligation to make any payment to any of the Newco Parties pursuant to this Section 12.4(b) unless and until the aggregate amount of all claims arising pursuant hereto exceeds $250,000 and then only for the amount of such excess.
(vc) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity The indemnification obligations set forth in clause (viithis Section 12.4 shall survive until the earlier of the second anniversary of the Closing Date and the consummation of the initial public offering of Newco Common Stock; provided, however, that any claim asserted by the relevant taxing authority prior to such time shall survive until paid or until there is a Final Determination that no portion of such claim is owed to such taxing authority. In the event that Xxxx-Xxxxxx or the Loomis Stockholders Trust, as applicable, objects to the calculation of any such indemnification obligations, such party shall, within 30 days of receipt of such claim, submit to Newco a written notice of objection thereto stating in reasonable detail the reason for such objection. In the event that the such party and Newco cannot come to a mutual agreement regarding the claim objected to by such party within 30 days after the receipt by Newco of written notice objecting to such claim, the matter shall be settled exclusively by arbitration in the manner set forth in Section 12.5(c) hereof. Any amounts due to Newco as a result of Section 11.07(a)such arbitration shall be paid promptly following the conclusion of such arbitration.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller PHMD shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any all Taxes imposed on of the Business or Foreign Subsidiary for the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result other than Taxes attributable to extraordinary transactions undertaken on the Closing Date at the direction of the Pre-Closing RestructuringPurchaser), (ii) any all Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of Seller Companies or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person Affiliates thereof (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxesthe Foreign Subsidiary), in each case, including any liability for Taxes allocable to the extent such Taxes are attributable to the operation or arising out of the Business or ownership of the Transferred Assets prior to the Closing, (v) for any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with and including all Taxes incurred by the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Seller Companies or any of Affiliates thereof (other than the Foreign Subsidiary) due to the conveyance by PHMD and its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, Transferred Assets under this Agreement); and (viiiiii) any German business all Taxes that are the responsibility of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised Sellers pursuant to Section 8.06(c5.6(b); provided, however, that in the case of clauses (i), (ii) any and (iii) above, PHMD shall be liable only to the extent that such Taxes are in excess of the amount, if any, taken into account as a liability in determining the adjustment described in Working Capital on the Closing Date as finally determined under Section 2.04, 2.5. PHMD's obligation to indemnify and hold harmless Purchaser and each Purchaser Affiliate under this Section 9.2 shall survive until sixty (iii60) any Taxes attributable days following the expiration of the statute of limitations applicable to the underlying Tax (giving effect to any breach waiver, mitigation or nonperformance extension of Purchaser’s obligations pursuant the subject statute of limitations); provided, however, that if notice of a claim shall have been timely given to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable PHMD under Section 8.018.2 or Section 9.1(b) on or prior to such survival termination date, provided that PHMD's obligation to indemnify and hold harmless the Purchaser Indemnified Persons in respect of such claim shall survive beyond such date until such claim for indemnification has been satisfied or otherwise resolved. Any amounts paid or payable under this Section 11.07(b) 9.2 shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)without duplication with amounts otherwise payable under this Agreement.
Appears in 1 contract
Tax Indemnification. (ai) From The Selling Stockholders hereby agree, jointly and after the Closing Dateseverally, Seller shall to indemnify and hold the Purchaser Indemnified Persons against and hold them Parties harmless from and against, and to pay to the Purchaser Indemnified Parties the amount of any and all Losses arising from, relating to or otherwise in respect of, of (A) except as provided in Section 11.07(b8.6(j)(iv), all Taxes of the Company (ior any predecessor thereof) (1) for any taxable period ending on or before the Closing Date, and (2) for the portion of any Straddle Period ending at the close of business on the Closing Date (determined as provided in Section 8.6(c)); (B) any and all Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result member of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax groupgroup of which the Company (or any predecessor thereof) is or was a member on or prior to the Closing Date by reason of the liability of the Company (or any predecessor thereof), for pursuant to Treasury Regulation Section 1.1502-6(a) (or any Pre-Closing Tax Periodpredecessor or successor thereof or any analogous or similar provision under state, local or foreign Law); and (ivC) any failure by the Selling Stockholders to timely pay any Taxes for which a Transferred Entityrequired to be borne by the Selling Stockholders pursuant to Section 8.6(f); provided, Purchaser or however, that in the case of any Affiliate of Purchaser is the foregoing amounts, the Selling Stockholders shall be liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, only to the extent such Taxes are attributable exceed the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) on the operation face of the Business or ownership of the Transferred Assets prior to the Closing, Closing Balance Sheet (vrather than in any notes thereto) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in determining the adjustment described in to the Purchase Price pursuant to Section 2.04, 2.4.
(iiiii) Purchaser agrees to indemnify and hold the Selling Stockholders harmless from and against (A) any and all Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIIIfor which the Selling Stockholders are not liable under this Agreement, and (ivB) any Transfer Taxes for which Purchaser is liable under the reimbursement amount referred to in Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a8.6(j)(iii).
Appears in 1 contract
Samples: Stock Purchase Agreement (American Public Education Inc)
Tax Indemnification. (a) From Subject to the limitations set forth in Sections 5.11(b) and after (c) below, each of the Closing DateBBS Stockholders jointly and severally agrees to indemnify, Seller shall indemnify the Purchaser Indemnified Persons defend and hold harmless each of Acquisition and Office Solutions, and their respective officers, directors and employees, on an after-tax basis, against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) of any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period tax liability (including interest and penalties) incurred by BBS or Acquisition, as successor to BBS, as a result of the PreMerger Transaction being treated as a reorganization under any provision of Section 368(a) of the Code (other than Sections 368(a)(1)(A) and (a)(2)(D) of the Code). Such payment shall be made on an after-Closing Restructuringtax basis after taking into account (i) any NOLs that carry over to Acquisition in the Merger Transaction under Section 381 of the Code that reduce the tax liability described in section 5.11(a), and (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 Office Solutions or any corresponding provision of state, local or non-U.S. Tax Law) Acquisition as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation receipt of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth indemnification payment described in Section 8.03(a5.11(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V..
(b) From Neither Office Solutions nor Acquisition shall be entitled to indemnification under section 5.11(a) above unless the aggregate amount that would be payable thereunder exceeds $30,000.00. In the event that, as a result of the recharacterization of the Merger Transaction, Office Solutions or Acquisition receives an indemnification payment, and later receives a reduction in tax liability resulting from an increase in tax basis in its assets that would not have been realized had the Merger Transaction not been recharacterized as a reorganization other than a reorganization described in Sections 368(a)(1)(A) and (a)(2)(D) of the Code, Office Solutions or Acquisition, as the case may be, shall promptly pay the amount of such tax reduction to the BBS Stockholders. The indemnification set forth Section 5.11(a) shall not cover any claims, losses, costs, expenses, damages, penalties or other liabilities that may accrue to BBS or Acquisition, as successor to BBS, as a result of any actions taken by BBS or Acquisition after the Closing Datedate hereof (other than consummation of the Merger).
(c) Once the aggregate amount of tax liability described in Section 5.11(a) above exceeds $30,000.00, Purchaser the party entitled to indemnification hereunder shall be entitled to obtain indemnification from the first dollar of such liability that exceeds $30,000.00, provided however, that the maximum liability to the BBS Stockholders for indemnification pursuant to this Section 5.11 when aggregated with any indemnification liability of the BBS Stockholders resulting from ARTICLE 9 hereof shall not exceed a total of $500,000.
(d) JPB and the Transferred Entities shall, jointly PAB agree to hold Acquisition and severally, indemnify the Seller Indemnified Persons and hold them Office Solutions harmless from any Losses arising fromand all claims, relating demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, and reasonable attorney fees, that either JPB or PAB shall incur or suffer, which arise out of, result from or relate to or otherwise taxes imposed upon either of them in respect the event that the Merger Transaction fails to qualify as a tax-free reorganization. JPB and PAB acknowledge that they have sought and relied upon the advice of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) their respective tax advisors and attorneys with respect to the tax treatment of the Merger Acquisition and the other transactions contemplated hereby, and that neither Acquisition nor Office Solutions makes any Post-Closing Tax Period, except representation or warranty with respect to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) tax treatment of the Seller Disclosure Letter (as such Section of Merger Transaction or the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)other transactions contemplated hereby.
Appears in 1 contract
Samples: Stock Purchase Agreement and Plan of Merger (Imtek Office Soultions Inc)
Tax Indemnification. (a) From Notwithstanding anything in this Agreement to the contrary, Buyer shall indemnify, defend and hold harmless Seller and its affiliates from and against any liability for Taxes of the Company for any taxable period ending after the Closing Date (except as provided in Section 6.3 hereof and to the extent such taxable period began before the Closing Date, in which case Buyer's indemnity will cover only that portion of any such Taxes that is not attributable to the Pre-Closing Period). Notwithstanding the foregoing, Buyer shall indemnify, defend and hold harmless Seller and its affiliates from and against any liability for Taxes of the Company arising on the Closing Date and attributable to activities of Buyer outside of the ordinary course of business.
(b) Notwithstanding anything in this Agreement to the contrary, Seller shall indemnify the Purchaser Indemnified Persons against indemnify, defend and hold them harmless Buyer and its affiliates from and against any Losses arising from, relating to or otherwise in respect ofliability for Taxes of the Company, except as provided in Section 11.07(b6.3 hereof, for all taxable periods ending on or before the Closing Date and for the Pre-Closing Period (including, but not limited to, any liability with respect to any Section 338(h)(10) Election) but only to the extent that the amount of such Taxes exceeds the aggregate amount of Taxes that have been reserved for on the Balance Sheet.
(c) In the case of any Straddle Period, except as provided in subparagraph (d) below and in Section 6.4 hereof, the liability for Taxes of the Company for the Pre-Closing Period shall be computed as if such taxable period ended on and included the Closing Date.
(d) In the case of any Taxes that are imposed on a periodic basis and are payable for the Straddle Period, other than Taxes based upon or related to income or Taxes described in Section 6.3 hereof, the liability for such Taxes of the Company for the Pre-Closing Period shall be deemed to be the amount of such Taxes for the Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period ending on and including the Closing Date and the denominator of which is the number of days in the Straddle Period.
(f) With respect to any Tax Claim which might result in an indemnity payment to Buyer pursuant to Section 6.7(b) (excepting Taxes of the Company for a Straddle Period Tax Claims with respect to which will be controlled jointly by the Buyer and the Seller), Seller shall control all proceedings taken in connection with such Tax Claim and, without limiting the foregoing, may in its sole discretion and at its sole expense pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and sue for a refund where applicable law permits such refund suits or contest such Tax Claim. Buyer shall not under any circumstances settle xx otherwise compromise any Tax Claim referred to in the preceding sentence without Seller's prior written consent. In connection with any proceeding taken in connection with such Tax Claim, (i) Seller shall keep Buyer informed of all material developments and events relating to such Tax Claim if involving a material liability for Taxes and (ii) Buyer shall have the right, at its sole expense, to participate in (but not control) any Taxes imposed on such proceedings. Buyer shall cooperate with Seller in contesting such Tax Claim (without charge to Seller), which cooperation shall include, without limitation, the Business retention and the provision to Seller of records and information which are reasonably relevant to such Tax Claim, and making employees available to Seller to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim, provided that no charges shall be incurred by Seller for the Transferred Entities with services of such employees.
(g) With respect to any Pre-Closing Tax Period (including as a Claim not described in Section 6.7(f) which might result of the Pre-Closing Restructuringin an indemnity payment to Seller pursuant to Section 6.7(a), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined Buyer shall control all proceedings in accordance with the principles provisions that are parallel to those in Section 6.7(f).
(h) Except as set forth in Section 8.03(a)6.4(c) or 6.4(d), but excluding any such inclusion that is attributable indemnity payment payable by Seller to actions taken Buyer or by Purchaser or any of its Affiliates Buyer to Seller pursuant to this Section 6.7 shall be paid within thirty days after the ClosingTax Indemnified Party's written request therefor (or, if later, ten days prior to the date such Tax is required to be paid), provided that such request shall be accompanied by a copy of the applicable Tax Return or a final audit determination and, if necessary, a statement reflecting the calculation of the amount for which the Tax Indemnifying Party is liable. Within thirty days following the receipt of a request for any indemnity payment hereunder, together with a computation by the Tax Indemnified Party of the indemnity amount payable hereunder, the Tax Indemnifying Party shall either pay such amount in immediately available funds in the manner designated by the Tax Indemnified Party to the Tax Indemnified Party or request in writing the Neutral Accounting Firm to determine whether such computation and amount are correct. After each party has had the opportunity to consult with the Neutral Accounting Firm, upon receipt thereof, the Tax Indemnified Party shall deliver to the Tax Indemnifying Party a statement from the Neutral Accounting Firm setting forth the determination by the Neutral Accounting Firm of such computation and the amount payable hereunder as an indemnity. The determination by the Neutral Accounting Firm in conformity with the provisions of this Agreement shall be final, conclusive and binding on the parties hereto. Within five business days after delivery to the Tax Indemnifying Party of the statement of determination by the Neutral Accounting Firm of such amount, the Tax Indemnifying Party shall pay such amount in immediately available funds to the Tax Indemnified Party in the manner designated by the Tax Indemnified Party.
(vii) Notwithstanding any Taxes attributable provision in this Agreement to any breach or violation the contrary, the liability of any of Seller’s representations set forth in party hereto to indemnify any other party hereto pursuant to this Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise 6.7 in respect of Tax Claims shall be limited to Tax Claims as to which the Tax Indemnified Party has given the Tax Indemnifying Party written notice, setting forth therein in reasonable detail the basis for such Tax Claim, on or prior to the day and date on which the applicable statute of limitations relating to the Taxes at issue expires (iafter giving effect to valid extensions thereof) any Taxes imposed on and the Transferred Assetscosts indemnified hereunder shall include reasonable attorney's fees and the costs and expenses of enforcing the indemnification obligation, if any. Unless the Buyer consents, the Business Seller will not settle any Tax Claim or file any Tax Return, amended or otherwise, on which the Company makes an election or takes a position that would cause Buyer or the Transferred Entities (other than, for Company to pay more Taxes in future years than Buyer or the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent Company would have paid has such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) settlement or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall election not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)been made.
Appears in 1 contract
Tax Indemnification. (a) From Notwithstanding the provisions of Article 8, claims relating to this Article 10 shall be exclusively dealt with in Article 10, except to the extent Article 10 makes specific reference to Article 8.
(b) VARTA shall indemnify and hold harmless the relevant Company from and against any (i) Tax of any of the Companies related to a Pre-Closing Date Tax Period (except to the extent of any accrued liabilities for Taxes shown on the Closing Date Financial Statements) irrespective whether disclosed or not and (ii) any liability for Taxes arising from a breach of any Tax representation and warranty contained in Section 10.2 or any other Loss arising therefrom (the sum of (i) and (ii) being referred to herein as a "TAX LOSS").
(c) If acts of VARTA or the Companies before the Closing Date which are not connected with the Companies' operative business, or transactions which were conducted for the preparation of the execution of this Agreement, lead to additional tax liabilities of the Companies for periods after the Closing Date, Seller VARTA shall indemnify the Purchaser Indemnified Persons against and hold them harmless Companies from any Taxes and Losses arising from, relating to or otherwise in respect of, except as provided in therefrom.
(d) VARTA's indemnification obligation under this Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do 10.5 does not primarily relate to Taxes), in each case, apply to the extent such Taxes that additional tax liabilities in one fiscal period are attributable to compensated by corresponding reduced liabilities in subsequent fiscal periods; in the operation calculation of the Business or ownership corresponding reduced liabilities; unaccrued interest shall be deducted at 6% p.a. or, if the period for deduction is uncertain, at 10% on a flat-rate basis, applying the respective accumulation tax rate in the case of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto different tax rates. VARTA shall further not be liable under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely this Article 10 to the extent such subpart F income is attributable that any actions of Strategic Partner, its group or the Companies after the Closing Date have given rise to income or earnings any additional tax liabilities of a Transferred Entity for the Companies related to a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Date Tax Period, except to the extent such Taxes are attributable to a breach actions of any representation set forth in Section 4.15(k) Strategic Partner, its group or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable Companies were required under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Agreement.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing DateClosing, Seller Versant GP and the Versant Stockholders shall indemnify the Purchaser Indemnified Persons against indemnify, save and hold them harmless the Parent Indemnified Parties from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any all liability for Taxes of Versant or the Versant Stockholders (to the extent liability for Taxes of the Versant Stockholders is imposed on the Business or the Transferred Entities Versant) with respect to any the transactions contemplated by this Agreement; (ii) all liability for Taxes of Versant or the Versant Stockholders (to the extent liability for Taxes of the Versant Stockholders is imposed on Versant) for all Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, Periods; (iii) any Taxes imposed on a Transferred Entity (including and all Damages arising out of, resulting from or incident to any Taxes imposed under Treasury Regulations breach by Versant GP or the Versant Stockholders of any covenant contained in Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, 5.06; and (iv) any Taxes for which a Transferred Entityand all Damages arising out of, Purchaser resulting from or incident to any inaccuracy or breach or any Affiliate representation or warranty of Purchaser is liable as a transferee Versant or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth Versant Stockholder contained in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.3.09.
(b) From and after the Closing DateClosing, Purchaser and the Transferred Entities shallParent shall indemnify, jointly and severally, indemnify the Seller Indemnified Persons save and hold them harmless the Versant Indemnified Parties from any Losses arising from, relating to or otherwise in respect of and against (i) any all liability for Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, of Versant for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), Period and (ii) any and all Damages arising out of, resulting from or incident to the breach by Parent of any covenant contained in Sections 5.04 or 5.06.
(c) In the case of any Straddle Period:
(i) real, personal and intangible property Taxes taken into account and any other Taxes levied on a per diem basis (“Per Diem Taxes”) of Versant for a Pre-Closing Tax Period shall be equal to the amount of such Per Diem Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the adjustment described Pre-Closing Tax Period and the denominator of which is the total number of days in Section 2.04, the Straddle Period; and
(iiiii) the Taxes of Versant (other than Per Diem Taxes) for any Taxes attributable to any breach or nonperformance Pre-Closing Tax Period shall be computed as if such taxable period ended as of Purchaser’s the Closing.
(d) The parties shall satisfy their indemnity obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause 7.05 within 10 days after a final determination (vwithin the meaning of Section 1313(a) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed the Internal Revenue Code of 1986, as limiting any indemnity set forth in clause (viiamended) of Section 11.07(a)the relevant Tax is made.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller the Diageo Tax Indemnitors shall pay or cause to be paid, and jointly and severally shall indemnify the Purchaser Indemnified Persons against each General Mills Tax Indemnitee and protect, save and hold them each General Mills Tax Xxxemnitee harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against the following Taxes:
(i) Any Tax imposed upon or relating to Diageo or any Taxes imposed on of the Continuing Affiliates for any period, including any such Tax for which any of the Business Entities (or the Transferred Entities with respect to any PreNon-Closing Tax Period Controlled Foreign Entity or Subsidiary thereof) may be liable (including as a result of the Pre-Closing Restructuring), (iiw) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of the Treasury Regulations (or any corresponding similar provision of state, local or non-U.S. Tax Lawforeign law), (x) as a result transferee or successor, (y) by contract or (z) otherwise;
(ii) Any Tax imposed upon or relating to any of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, the Business Entities for any Pre-Closing Period; and
(iii) Any Tax Periodimposed upon, relating to or resulting from (ivx) any Taxes for which a Transferred Entity, Purchaser the Merger or any Affiliate the provisions of Purchaser is liable as a transferee Section 2.13 or successor or by Contract 2.14 hereof (other than Contracts that do not primarily relate to Taxes)except, in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)7.3(b)(ii) below), but excluding (y) any such inclusion that is attributable to actions taken by Purchaser of the Subsidiary Purchases or (z) any restructuring undertaken in contemplation of the Merger or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Subsidiary Purchases.
(b) From and after the Closing Date, Purchaser the General Mills Tax Indemnitors shall pay or cause to be paid, and the Transferred Entities shall, jointly and severallyxxxxxally shall indemnify each Diageo Tax Indemnitee and protect, indemnify the Seller Indemnified Persons save and hold them each Diageo Tax Indemnitee harmless from any Losses arising from, relating to or otherwise in respect of and against the following Taxes:
(i) Any Tax imposed upon or relating to any Taxes imposed on the Transferred Assets, of the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Period; and
(ii) Any Tax Period, except to imposed upon the extent such Taxes are attributable to Pillsbury Stockholder on the Merger that would not have arisen but for a breach by General Mills of any representation of the representations set forth in Section 4.15(k7.0.
(c) or Section 4.15(l) or any inaccuracy Except as otherwise provided in Section 4.15(h) 7.7, payment in full of any amount due to a Tax Indemnitee under this Section 7.3 shall be made to the affected Tax Indem- nitee in immediately available funds at least two Business Days beforx xxx date payment of the Seller Disclosure Letter (as Taxes to which such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser payment relates is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)due.
Appears in 1 contract
Tax Indemnification. (a) From Subject to Section 10.1(d), the Seller shall be liable for, and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons Parties against and hold them harmless from any Losses arising from, relating to (i) all Liability for Taxes of the Company or otherwise in respect ofany affiliated group of which the Company has ever been a member for any taxable period ending on or before the Closing Date, except (ii) all Liability for Taxes of the Company for the portion of any Straddle Period ending at the close of business on the Closing Date (determined as provided in Section 11.07(b10.1(c)), (iii) Taxes arising from the breach of any representation or warranty in Section 5.10, (iv) a breach of any covenant in this Article X and (v) all Liability for reasonable legal fees and expenses attributable to any failure by the Seller to timely pay any item described in subclause (i), (ii), (iii) or (iv) above. Notwithstanding the foregoing, the Seller shall not be liable for, and shall not be required to indemnify the Purchaser Indemnified Parties against any item described in the foregoing clauses to the extent the Purchase Price has been expressly adjusted pursuant to Section 3.3 hereof to account for such items.
(b) The Purchaser and the Company, jointly and severally, shall indemnify Seller Indemnified Parties and hold them harmless from (i) all Liability for Taxes of the Company for any taxable period ending after the Closing Date that is not a Straddle Period, (ii) all Liabilities for Taxes imposed on of the Business Company for the portion of any Straddle Period beginning after the Closing Date (determined as provided in Section 10.1(c)), (iii) a breach of any covenant in this Article X and (iv) all Liability for reasonable legal fees and expenses attributable to any failure by the Purchaser or the Transferred Entities with respect Company to timely pay to the Seller any Pre-Closing Tax Period item described in subclause (including as a result of the Pre-Closing Restructuringi), (ii) any Taxes that are Retained Liabilities hereunder, or (iii) above.
(c) The Seller and the Purchaser will, unless prohibited by applicable law, close the taxable period of the Company as of the close of business on the Closing Date. If applicable law does not permit the Company to close its taxable year on the Closing Date or in any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) case in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser Tax is assessed with respect to a taxable period which includes the Closing Date (but does not begin or any Affiliate of Purchaser is liable as end on that day) (a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes"Straddle Period"), in each casethe Taxes, if any, attributable to a Straddle Period shall be allocated (i) to the extent such Taxes are attributable Seller for the period up to and including the close of business on the Closing Date, and (ii) to the operation of Purchaser for the Business or ownership of the Transferred Assets prior period subsequent to the Closing, (v) Closing Date. Any allocation of income or deductions required to determine any Taxes attributable to any “subpart F income” a Straddle Period shall be made by means of a closing of the books and records of the Company as of the close of the Closing Date, provided that exemptions, allowances or deductions that are calculated on an annual basis (including any increase thereto depreciation and amortization deductions) shall be allocated between the period ending on the Closing Date and the period after the Closing Date in proportion to the number of days in each such period.
(d) The indemnity obligation of the Seller under Section 965 10.1(a)(ii) (i.e., Taxes in connection with Straddle Periods) shall initially be effected by its payment to the Purchaser of the Codeexcess of (i) required to be included in income in a Post-Closing Tax Period solely the portion of such Taxes apportioned to the extent Seller pursuant to Section 10.1(c) over (ii) the amount of such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with Taxes paid by the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser Seller or any of its Affiliates after (other than the Closing, (viCompany) at any time plus the amount of such Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered paid by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. Company on or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after prior to the Closing Date, Purchaser and . Such excess initially shall be paid to the Transferred Entities shall, jointly and severally, indemnify Company within the time prescribed by Section 10.1(e). If the amount of such Taxes paid by the Seller Indemnified Persons and hold them harmless from or any Losses arising from, relating of its Affiliates (other than the Company) at any time plus the amount of such Taxes paid by the Company on or prior to or otherwise in respect the Closing Date exceeds the amount of (i) any such Taxes imposed on apportioned to the Transferred AssetsSeller pursuant to Section 10.1(c), the Business or Company shall pay to the Transferred Entities (other than, Seller the amount of such excess within 30 days after the Tax Return with respect to the final Liability for the avoidance of doubt, as contemplated by such Taxes is required to be filed. The payments to be made pursuant to this Section 11.01(a)(vi)10.1(d) with respect to a Straddle Period shall be appropriately adjusted to reflect any Post-Closing final determination with respect to Straddle Period Taxes.
(e) The Seller shall cause the Company to timely file all Tax Period, except Returns required to be filed by it on or prior to the extent such Closing Date and shall pay or cause to be paid all Taxes are shown due thereon. Following the Closing, the Purchaser shall cause to be timely filed all Tax Returns required to be filed by the Company after the Closing Date and, subject to the rights to payment from the Seller under the following sentence, pay or cause to be paid all Taxes shown due thereon. With respect to any Tax Return of the Company attributable to a breach Straddle Period, no later than ten (10) days prior to the date of filing such Tax Return, the Purchaser shall furnish or cause to be furnished to the Seller a copy of such Tax Return for the Seller's review and approval, such approval not to be unreasonably withheld. Not later than five (5) days prior to the due date for the payment of Taxes on any Tax Returns which the Purchaser has the responsibility to cause to be filed pursuant to the preceding sentence, the Seller shall pay to the Purchaser the amount of Taxes, as reasonably determined by the Purchaser, owed by the Seller pursuant to the provisions of Section 10.1(a).
(f) For indemnification of any representation set forth Tax Claim (as defined in Section 4.15(k) or Section 4.15(l) or any inaccuracy 10.1(f)(i), the following procedures shall apply, exclusive of the procedures in Section 4.15(h9.4:
(i) If a claim is made by any Taxing Authority, which, if successful, might result in an indemnity payment to any of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised Purchaser Indemnified Parties pursuant to Section 8.06(c)10.1(a), the Purchaser shall promptly notify the Seller in writing of such claim (a "Tax Claim").
(ii) With respect to any Tax Claim (other than a Tax Claim relating solely to Taxes of the Company for a Straddle Period), the Seller shall control all proceedings taken into account in connection with such Tax Claim (including selection of counsel) and, without limiting the adjustment described foregoing, may in Section 2.04its sole discretion pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and sue for a refund where applicable Law permits such refund suxxx or contest the Tax Claim in any permissible manner. The Seller and the Purchaser shall jointly control all proceedings taken in connection with any Tax Claim relating solely to Taxes of the Company for a Straddle Period; provided, however, that (A) the Purchaser and counsel of its own choosing, shall have the right to participate fully in all aspects of the prosecution or defense of such Tax Claim, and (B) neither the Seller nor the Purchaser shall settle any such Tax Claim without prior written consent of the other, such consent not to be unreasonably withheld. Except as otherwise provided in this Agreement, the Purchaser shall control all other proceedings with respect to all other disputes relating to Taxes.
(iii) The Purchaser and the Company shall cooperate with the Seller in contesting any Taxes attributable Tax Claim, such cooperation shall include the retention and (upon the Seller's request) the provision to any breach or nonperformance the Seller of Purchaser’s obligations pursuant records and information which are reasonably relevant to Article VIIIsuch Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
(iv) In no case shall any Transfer Taxes for of the Purchaser Indemnified Parties settle or otherwise compromise any Tax Claim which Purchaser is liable might result in an indemnity payment under Section 8.01, provided that this Section 11.07(b10.1(a) shall not be construed as limiting any indemnity set forth in clause (v) without the prior written consent of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)the Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Wire Group Inc)
Tax Indemnification. (a) From and after the Closing DateClosing, Seller shall indemnify each Stockholder hereby indemnifies Parent and Merger Sub and their respective officers, directors, agents, employees, successors and assigns (collectively, the Purchaser Indemnified Persons “Parent Tax Indemnitees”) against and agrees to hold them each Parent Tax Indemnitee harmless from any Losses Covered Tax and any liabilities, costs, expenses (including, reasonable out-of-pocket expenses of investigation and attorneys’ fees and expenses), losses, damages, assessments, settlements or judgments arising fromout of or incident to the imposition, relating to assessment or otherwise in respect ofassertion of any Covered Tax (together, except as provided in a “Tax Loss”). Notwithstanding the provisions of this Section 11.07(b)7.5, (i) any Taxes imposed on in no event shall the Business or amount to be paid by the Transferred Entities with MDP Stockholder to the Parent Tax Indemnitees in respect of a claim for indemnification pursuant to any Pre-Closing Tax Period (including as a result this Section 7.5 exceed the MDP Stockholder’s Pro Rata Portion of the Pre-Closing Restructuring)such claim, and (ii) in no event shall the aggregate amount to be paid by the Other Stockholders to the Parent Tax Indemnitees in respect of a claim for indemnification pursuant to this Section 7.5 exceed the Other Stockholders’ aggregate Pro Rata Portion of such claim. The obligations of the Stockholders under this Section 7.5 shall survive until the Second Anniversary Date, after which time no claim for indemnification not theretofore asserted may be brought in respect of any Taxes Tax Loss.
(b) If the Company or any of its subsidiaries is required by Applicable Law to pay an amount to a Taxing Authority that are Retained Liabilities hereunderwould constitute a Tax Loss in connection with but prior to the resolution of a suit, action or proceeding described in Section 7.6, (iiii) any Taxes imposed on a Transferred Entity the MDP Stockholder shall pay its Pro Rata Portion of such amount and (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision ii) the Stockholder Representative shall cause the Indemnity Escrow Agent to release the Other Stockholders’ aggregate Pro Rata Portion of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes)such amount, in each case, to Parent within ten (10) days of receipt of notice of the extent payment by Parent. In the event that Parent receives a partial or total refund of any such Taxes are attributable payment, Parent shall transfer the appropriate amounts to the operation of the Business or ownership of the Transferred Assets prior Stockholder Representative and to the Closing, MDP Stockholder within ten (v10) days of receipt.
(c) Any claim of any Taxes attributable to any “subpart F income” Parent Tax Indemnitee under this Section 7.5 may be made and enforced by Parent on behalf of such Parent Tax Indemnitee.
(including any increase thereto under Section 965 of the Coded) required to be included in income in a Post-Closing Tax Period solely Any payment to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Parent Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise Indemnitees in respect of (i) any Taxes imposed on claim for indemnification properly asserted by the Transferred Assets, Parent Tax Indemnitees under this Section 7.5 shall be paid in the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth manner provided in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)9.6.
Appears in 1 contract
Samples: Merger Agreement (Transunion Corp.)
Tax Indemnification. (a) From 9.6.1.1 Sellers hereby agree to jointly and after the Closing Date, Seller shall severally indemnify the Purchaser Indemnified Persons against Parties and defend and hold them harmless from any all Losses arising frombased upon, relating related to or otherwise in respect of, except as provided in Section 11.07(b), resulting from (i) any liability for Excluded Taxes, (ii) the failure of any representation or warranty of Sellers contained in Section 4.11 to be true and correct, (iii) any liability for Transfer Taxes imposed on the Business or the Transferred Entities Sellers pursuant to Section 10.2, and (iv) any liability for Taxes that arises in connection with respect netting Final Intercompany Receivables and Final Intercompany Payables pursuant to any Pre-Closing Tax Period section 2.2.2.3 of this Agreement (including e.g., as a result of the deemed distribution of cash or the deemed distribution of Intercompany Receivables from any Company or Subsidiary to Purchaser or its Affiliates, including each Company and Subsidiary) that is not included in the calculation of Final Netting Tax Amount provided in the case of (i) and (ii), except to the extent Taxes are taken into account in the calculation of the Final Purchase Price pursuant to Section 2.2. Taxes as used in clause (iv) above shall be determined without regard to reference to any reduction in Taxes attributable to any Tax asset (e.g., any item of loss or credit or any carryforward of any loss or credit) of Purchaser or its Affiliates other than any foreign Tax credit attributable to netting Final Intercompany Receivables and Final Intercompany Payables pursuant to section 2.2.2.3 of this Agreement. Notwithstanding the foregoing, Sellers shall not indemnify and hold harmless Purchaser Indemnified Parties from any liability for Taxes attributable to any action taken not in the ordinary course of business after the Closing on the Closing Date or after the Closing Date by Purchaser, any of its Affiliates (including the Companies and the Subsidiaries) or any transferee of Purchaser or any of its Affiliates (other than any such action expressly required by applicable Law or by this Agreement including, without limitation, those required pursuant to Section 2.2.2.3 of this Agreement.) (a "PURCHASER TAX ACT") or attributable to a breach by Purchaser of its obligations under this Agreement.
9.6.1.2 Purchaser shall, and shall cause the Companies and Subsidiaries to, indemnify Sellers and their Affiliates and each of their respective officers, directors, employees, stockholders, agents, successors or assigns and representatives and defend and hold them harmless from all Losses based upon, related to or resulting from (i) any liability for Taxes of the Companies and the Subsidiaries for any taxable period ending after the Closing Date (except to the extent such taxable period began before the Closing Date, in which case Purchaser's indemnity will cover only that portion of any such Taxes that are not for the Pre-Closing RestructuringTax Period), (ii) any liability for Transfer Taxes that are Retained Liabilities hereunderimposed on Purchaser pursuant to Section 10.2, (iii) any liability for Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance calculation of Purchaser’s obligations the Final Purchase Price pursuant to Article VIIISection 2.2, and (iv) any Transfer liability for Taxes attributable to a Purchaser Tax Act or to a breach by Purchaser of its obligations under this Agreement.
9.6.1.3 In the case of any taxable period that includes (but does not end on) the Closing Date (a "STRADDLE PERIOD"):
9.6.1.3.1 real, personal and intangible property Taxes ("PROPERTY TAXES") of the Companies and Subsidiaries allocable to the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which Purchaser is liable under Section 8.01the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of days in the Straddle Period; and
9.6.1.3.2 the Taxes (other than Property Taxes) of the Companies or the Subsidiaries allocable to the Pre-Closing Tax Period shall be computed as if such taxable period ended as of the close of business on the Closing Date, provided that this Section 11.07(bexemptions, allowances or deductions that are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall not be construed as limiting any indemnity set forth allocated between the period ending on the Closing Date and the period after the Closing Date in clause (v) proportion to the number of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth days in clause (vii) of Section 11.07(a)each period.
Appears in 1 contract
Samples: Stock Purchase Agreement (Winfred Berg Licensco Inc)
Tax Indemnification. (a) From and after the Closing DateClosing, Seller the Sellers shall indemnify the Purchaser Indemnified Persons against indemnify, save and hold them harmless Purchaser from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) all Liability for Income Taxes of the Company (other than Excluded Taxes) for all Pre-Closing Tax Periods; (ii) all Liability for Income Taxes arising out of the operation of the Transferred Facilities for all Pre-Closing Tax Periods; (iii) any and all Losses arising out of, resulting from or incident to any breach by any of the Sellers of any covenant contained in Article VII; and (iv) the Sellers’ share of prorated Real Property Taxes and other Non-Income Taxes as set forth in Section 2.06. Notwithstanding anything to the contrary in this Agreement, none of the Sellers shall be liable for or pay for any Taxes (collectively, “Excluded Taxes”) that are imposed on the Business Company on the Closing Date as a result of actions taken or elections made by Purchaser (or the Company at the request of Purchaser) after the effective time of Closing on the Closing Date.
(b) From and after the Closing, Purchaser shall indemnify, save and hold harmless the Seller Indemnified Parties from and against (i) all Excluded Taxes; (ii) all Liability for Taxes of the Company for any Post-Closing Tax Period; (iii) any and all Losses arising out of, resulting from or incident to the breach by Purchaser of any covenant contained in Article VII; (iv) Purchaser’s share of prorated Real Property Taxes and other Non-Income Taxes as set forth in Section 2.06.
(c) In the case of any Straddle Period:
(i) except as otherwise set forth in Section 2.06, Real Property Taxes and other Non-Income Taxes of the Company for a Pre-Closing Tax Period shall be equal to the amount of such Real Property Taxes and other Non-Income Taxes applicable to the Transferred Entities with respect to Facilities for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Period; and
(ii) Income Taxes of the Company (other than Excluded Taxes) for any Pre-Closing Tax Period shall be computed as if such Tax Period ended as of the close of business on the Closing Date.
(d) If a claim shall be made by any Governmental Authority with respect to Taxes, which, if successful, might result in an indemnity payment to a party pursuant to this Section 9.08 (a “Tax Claim”), the notice provisions set forth in Section 9.05 shall apply.
(e) With respect to any Tax Claim relating to Income Taxes or Real Property Taxes for a Tax Period ending on or prior to the Closing Date, the Sellers shall, upon written notification to Purchaser, control all proceedings and may make all decisions taken in connection with such Tax Claim (including as a result selection of counsel) at its own expense; provided, however, that Purchaser may participate in proceedings and decisions to the extent they involve Excluded Taxes. The Sellers and Purchaser shall jointly control all proceedings taken in connection with any Tax Claim relating to Income Taxes or Real Property Taxes of the Company for a Straddle Period. Purchaser shall control at its own expense all proceedings with respect to any other Tax Claim relating to a Tax Period beginning before the Closing Date and all Tax Claims relating to a Tax Period beginning after the Closing Date. A party shall promptly notify the other party if it decides not to control the defense or settlement of any Tax Claim which it is entitled to control pursuant to this Agreement, and the other party shall thereupon be permitted to defend and settle such proceeding.
(f) The Sellers’ indemnity obligation in respect of Income Taxes for a Pre-Closing Restructuring), Income Tax Period shall initially be effected by their payment to Purchaser of the excess of: (iii) any such Income Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred EntityExcluded Taxes) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined as may be evidenced by any Tax Return prepared in accordance with Section 7.01 or as otherwise indicated in a written notice prepared by Purchaser) over (ii) the principles set forth in Section 8.03(a)), but excluding amount of such Income Taxes paid by any Bally Entity at any time plus the amount of such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Income Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered paid by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. Company on or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after prior to the Closing Date. The Sellers shall pay such excess to the relevant Governmental Authority or, at the Sellers’ option, to Purchaser and within ten days after written demand is made by Purchaser (but not earlier than five days before the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any date on which Income Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance relevant Tax Period are required to be paid to the relevant Governmental Authority). If the amount of doubt, as contemplated any such Income Taxes paid by Section 11.01(a)(vi)) with respect any Bally Entity at any time plus the amount of such Income Taxes paid by the Company on or prior to any Postthe Closing Date exceeds the amount of such Income Taxes for the Pre-Closing Tax Period, except Purchaser shall pay to the extent Sellers the amount of such excess within ten days after the Tax Return with respect to the final Liability for such Income Taxes are attributable is required to a breach be filed with the relevant Governmental Authority. In the case of any representation set forth an Income Tax that is contested in accordance with the provisions of Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) 9.08(e), payment of the Seller Disclosure Letter (as such Section of Income Tax to the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) appropriate Governmental Authority shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not considered to be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)due or required to be paid earlier than the date a final determination to such effect is made by the appropriate Governmental Authority or court.
Appears in 1 contract
Samples: Purchase Agreement (Bally Total Fitness Holding Corp)
Tax Indemnification. (a) From and after the Closing Date, Seller The Company shall indemnify and save harmless all members of the Purchaser Indemnified Persons CBG Group from and against any and hold them harmless from any Losses all Taxes arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including incurred as a result of the Pre-Closing Restructuring)entering into or completion of the Project Frontrunner Amendments, (ii) together with all Losses that any Taxes that are Retained Liabilities hereundermember of the CBG Group may suffer or incur, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 directly or any corresponding provision of stateindirectly, local or non-U.S. Tax Law) as a result of its inclusion or in connection with Seller, or arising from any Subsidiary Transferor liability for Taxes resulting from or any other Person related to the entering into or completion of the Project Frontrunner Amendments (other than a Transferred EntityTaxes and Losses in connection with Taxes resulting from or related to the 6.1% interest (or 15% interest upon an event of default) payable pursuant to the Debenture and Taxes and Losses in a consolidatedconnection with Taxes resulting from or related to the royalties payable pursuant to the A&R Trademark and Technology License); provided, combined or unitary Tax grouphowever, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable applicable in determining the Company’s liability for an indemnification claim made pursuant to this Section 2.5, the operation of CBG Group’s economic ownership in the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required Company shall be deemed to be included in income in 38.6%. In no event, other than a Post-Closing Tax Period solely to settlement that complies with subsection 2.5(d)(iii) below, shall the extent such subpart F income is attributable to income or earnings of a Transferred Entity Company be liable for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered owing by the sale of CBG Group unless finally determined to be payable under the limited partner interests by Spectrum Brands Real Estate B.V. Code or by any special business income (Sonderbetriebseinnahmen) other applicable state or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. local law in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.United States.
(b) From and after The CBG Group shall promptly give written notice to the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from Company of any Losses arising from, relating to or otherwise claim in respect of which the CBG Group intends to claim for indemnification against the Company pursuant to Section 2.5(a) (an “Indemnity Claim”). Such notice shall specify with reasonable particularity (to the extent that the information is available) the nature of the Indemnity Claim. If the CBG Group fails to give such notice, such failure shall not preclude the CBG Group from obtaining such indemnification, but its right to indemnification may be reduced to the extent that such delay materially prejudices the defence of the Claim or increases the amount of liability or cost of defense. The CBG Group shall assume control of the negotiation, settlement and defence of such Indemnity Claim and the reasonable and documented costs of such defence shall be Losses.
(c) The Company will have the right to fully participate in the negotiation, settlement and defence of such Indemnity Claim at its own expense and will have the right to disagree on reasonable grounds with the selection and retention of counsel, in which case counsel satisfactory to the Company and the CBG Group (each acting reasonably) shall be retained by the CBG Group. The CBG Group shall vigorously defend against any Indemnity Claim and, if the CBG Group fails to continue to defend such Indemnity Claim in such manner, the Company will be entitled to assume control of the Indemnity Claim at its expense and the CBG Group will be bound by the results obtained by the Company with respect to such Indemnity Claim.
(d) The following provisions shall also apply with respect to Indemnity Claims:
(i) The CBG Group shall not permit any Taxes imposed on right of appeal in respect of any Indemnity Claim to terminate without giving the Transferred Assets, Company notice thereof and an opportunity to discuss same in good faith with the Business or CBG Group.
(ii) The CBG Group and the Transferred Entities (Company shall co-operate fully with each other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except Indemnity Claims and shall keep each other fully advised with respect thereto (including supplying copies of all relevant documentation promptly as it becomes available to the extent such Taxes are attributable to so doing does not result in a breach waiver of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(cprivilege)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, .
(iii) Notwithstanding the above provisions of this Section 2.5, the CBG Group shall not settle any Taxes attributable to Indemnity Claim or conduct any breach related legal or nonperformance administrative Proceeding in a manner which would, in the opinion of Purchaser’s obligations pursuant to Article VIIIthe Company, and acting reasonably, have a material adverse impact on the Company, without first consulting with the Company.
(iv) any Transfer Taxes for which Purchaser is liable under The provisions of this Section 8.012.5 are intended to set out the procedures to be followed with respect to an Indemnity Claim and, provided that the CBG Group follows such procedures in all material respects, nothing contained in this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)2.5 will derogate from the Company’s obligations to indemnify the CBG Group.
Appears in 1 contract
Tax Indemnification. (a) From and after To the extent not paid or accrued (including the payment of estimated Taxes) before Closing or reflected on the Closing DateStatement of Net Assets, Seller shall indemnify the Purchaser Indemnified Persons against and its Affiliates and hold them harmless from all liability for (A) Excluded Taxes, (B) Taxes arising from or in connection with any Losses breach by Seller of any covenant contained in this Article XIV (but only to the extent appropriate to reflect the relative fault of Seller, on the one hand, and Purchaser, on the other hand); (C) Seller’s responsibility for any Transfer Taxes in accordance with Section 14.9; and (D) all costs and expenses, including reasonable legal fees and expenses, attributable to any item in clauses (A) through (C).
(b) Purchaser shall indemnify Seller and its Affiliates and hold them harmless from all liability for (A) any and all Taxes imposed on or payable with respect to the Acquired Company or the Business, other than Excluded Taxes, (B) Purchaser’s responsibility for any Transfer Taxes in accordance with Section 14.9, (C) Taxes arising fromfrom or in connection with any breach by Purchaser of any covenant contained in this Article XIV (but only to the extent appropriate to reflect the relative fault of Purchaser, relating on the one hand, and Seller, on the other hand) and (D) all costs and expenses, including reasonable legal fees and expenses, attributable to any item in clauses (A) through (C).
(c) Any indemnity payment to be made pursuant to this Section 14.1 shall be paid no later than the latest of (i) ten (10) days after the indemnified party makes written demand upon the indemnifying party, (ii) five (5) days prior to the date on which the underlying amount is required to be paid by the indemnified party, and (iii) five (5) days after any dispute about the liability for or otherwise amount of such indemnity payment is resolved.
(d) The indemnification provisions in this Section 14.1 shall survive the Closing until 90 days after the expiration of the applicable statute of limitations for the Tax giving rise to the claim for indemnification.
(e) The Closing Statement of Net Assets is to reflect (i) prepaid Property Taxes as an asset and (ii) accrued Property Taxes as a liability. The parties agree that all Property Taxes imposed on or with respect ofto the Purchased Assets or the Acquired Company will be pro-rated as of the Closing Date and that, except as provided in Section 11.07(b)notwithstanding any other provision of this Agreement, the economic burden of any such Property Tax will be borne by Seller for all Pre-Closing Tax Periods (including the portion of a Straddle Period through the Closing Date) and by Purchaser for all Post-Closing Tax Periods (including the portion of a Straddle Period after the Closing Date) . Accordingly, notwithstanding any other provision of this Agreement, (i) if Seller or any Taxes imposed on the Business of its Affiliates pays (either before or the Transferred Entities after Closing) any such Property Tax with respect to any Prea Post-Closing Tax Period (including Period, Purchaser will reimburse Seller upon demand for the amount of such Property Tax to the extent it is not reflected as a result an asset on the Closing Statement of the Pre-Closing Restructuring), Net Assets; and (ii) if Purchaser or any Taxes that are Retained Liabilities hereunder, of its Affiliates pays (iiiafter Closing) any Taxes imposed on such Property Tax with respect to a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes Seller will reimburse Purchaser upon demand for which a Transferred Entity, Purchaser or any Affiliate the amount of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, such Property Tax to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in it is not reflected as a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed liability on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect Statement of (i) any Taxes imposed on the Transferred Net Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).
Appears in 1 contract
Tax Indemnification. (a) From and after Except to the extent any Taxes have been previously paid or deposited by the Company on or prior to the Closing Date, Seller the Sellers shall indemnify and hold the Purchaser Indemnified Persons Buyer and its Affiliates, and the Company and their respective officers, directors, employees, agents, successors and permitted assigns (each a “Buyer Tax Indemnitee”) harmless from and against and hold them harmless from shall reimburse each Buyer Tax Indemnitee for, any Losses and all Taxes or other Adverse Consequences actually incurred, suffered or accrued at any time by any Buyer Tax Indemnitee arising from, relating out of or attributable to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Liability for the Taxes imposed of Company for any period ending on or before the Closing Date and the portion of any Straddle Period ending on the Business or Closing Date, (ii) all liabilities of the Transferred Entities with respect to any Pre-Closing Tax Period (including Company as a result of the Preapplicability of Treas. Reg. §1.1502-6 or similar provisions of foreign, state or local Tax law for Taxes of the any other corporation affiliated with the Company on or prior to the Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, Date and (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 breach or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion misrepresentation with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, respect to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth representations and warranties contained in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any 4.12 of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.this Agreement.
(b) From and after Notwithstanding anything to the Closing Datecontrary herein, Purchaser the indemnification provided in this Section 11.5 shall not be limited by the other provisions of this ARTICLE 11, including the Indemnity Cap and the Transferred Entities shall, jointly Indemnity Basket and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, shall survive for the avoidance applicable statute of doubt, as contemplated by Section 11.01(a)(vi)limitations plus ninety (90) days. In the case of Taxes that are payable with respect to any Post-Taxable period that includes (but does not end on) the Closing Tax Date (a “Straddle Period”):
(i) the Parties hereto shall treat the Closing Date as the last day of such period (i.e., except the parties hereto shall “close the books” on such date) and shall elect to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), do so if permitted by applicable Legal Requirement; and
(ii) the portion of any Taxes taken into account such Tax that is allocable to the portion of the taxable period ending on the Closing Date shall be, (A) in the adjustment described in Section 2.04, (iii) any case of Taxes attributable to any breach based on income or nonperformance receipts determined under the closing of Purchaser’s obligations pursuant to Article VIII, the books method and (ivb) any Transfer in the case of other Taxes, deemed to be the amount of such Taxes for the entire Straddle Period (after giving effect to amounts which Purchaser may be deducted from or offset against such Taxes with respect to such periods under the relevant Tax Legal Requirement) (or in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is liable under Section 8.01, provided that the number of days in the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period. Any credit or refund resulting from an overpayment of Taxes for a Straddle Period shall be prorated based upon the method employed in this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a11.5(b)(ii).
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller the Cosmo Tax Indemnitors shall pay or cause to be paid, and jointly and severally shall indemnify the Purchaser Indemnified Persons against each Salix Tax Indemnitee and protect, save and hold them each Salix Tax Indemnitee harmless from and against the following Taxes, including any Losses arising from, relating legal and accounting fees and expenses attributable to or otherwise in respect of, except as provided in Section 11.07(b), any such Taxes:
(i) any Taxes Tax imposed upon or relating to Cosmo or any of the Continuing Affiliates for any period, including any such Tax for which any of the Salix Tax Indemnitees (or any Subsidiary thereof) may be liable (w) under a consolidated, combined or unitary basis (or any similar provision of any Similar Law), (x) as a transferee or successor, (y) by contract or (z) otherwise, on a secondary or joint and several basis;
(ii) any Tax relating to the Excluded Assets for any period;
(iii) any Tax imposed upon any of the Tech Group Entities, (other than the Surviving Corporation), the Business or the Transferred Entities Acquired Assets with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, ;
(iv) any Taxes for which incurred or sustained by any Salix Tax Indemnitee arising out of a Transferred Entity, Purchaser or any Affiliate breach of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), representations contained in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, Section 7.1;
(v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the CodeTransfer Taxes) required to be included imposed in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance connection with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, Extraction Reorganization; and
(vi) any Taxes attributable (including Transfer Taxes) imposed due to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale failure of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Cosmo Parties to perform their covenants under Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.5.3.
(b) From and after the Closing Date, Purchaser the Tech Group Entities, including Salix as the Surviving Corporation, shall pay or cause to be paid, and the Transferred Entities shall, jointly and severally, shall indemnify the Seller Indemnified Persons Cosmo Tax Indemnitors and protect, save and hold them the Cosmo Tax Indemnitors harmless from any Losses arising from, relating to or otherwise in respect of (i) and against any Taxes (including Transfer Taxes) imposed on the Transferred AssetsCosmo Tax Indemnitors in connection with the Structural Reorganization (other than any Taxes resulting from the failure of the Cosmo Parties to perform their obligations to effect the Reorganization in accordance with Schedule A), including any legal and accounting fees and expenses attributable to any such Taxes.
(c) Except as otherwise provided in Section 7.4, payment in full of any amount due to the Business Salix Tax Indemnitees or the Transferred Entities (other than, for the avoidance of doubtCosmo Tax Indemnitors, as contemplated by applicable, under this Section 11.01(a)(vi)7.2 shall be made to the affected Salix Tax Indemnitee or Cosmo, as applicable, in immediately available funds at least two (2) Business Days before the date payment of the Taxes to which such payment relates is due.
(d) Neither the Salix Tax Indemnitees nor Cosmo shall be entitled to assert any indemnification pursuant to this Section 7.2 after the end of the applicable survival period as specified in Section 7.11; provided, that, if on or prior to the last date of such survival period, Salix or Cosmo, as applicable, shall have provided Cosmo or Salix, as applicable, with written notice of a claim for indemnification under this Section 7.2, then the Salix Tax Indemnitees and Cosmo shall continue to have the right to be indemnified with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth indemnification claim until such claim has been satisfied or otherwise resolved as provided in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to this Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)VII.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing DateSeller will (without duplication) indemnify, Seller shall indemnify the Purchaser Indemnified Persons against defend and hold them Acquiror and its Affiliates harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring)all Excluded Taxes, (ii) any portion of any Transfer Taxes that are Retained Liabilities hereunderallocable to Seller pursuant to Section 9.05, (iii) any Taxes imposed on a Transferred Entity (including resulting from or arising in connection with any Taxes imposed under Treasury Regulations Section 1.1502-6 breach by Seller or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, Affiliates of any Subsidiary Transferor or any other Person (other than a Transferred Entity) covenant in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Periodthis Agreement, (iv) the failure of Seller to provide a certificate pursuant to section 6 of the Retail Sales Tax Act (Ontario), and (v) reasonable costs and expenses, including reasonable legal fees and expenses, attributable to any Taxes for item in clauses (i) through (iv), which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes)were, in each case, paid by Acquiror. Subject to Section 9.08(c), Seller’s obligation to indemnify, defend or hold harmless Acquiror or any of its Affiliates from any Excluded Taxes pursuant to this Section 9.03(a) will terminate effective 60 calendar days following the expiration of the applicable statute of limitations (including extensions).
(b) Acquiror will (without duplication) indemnify, defend and hold Seller and its Affiliates harmless from and against all (i) Taxes imposed on or with respect to the extent such Taxes are attributable to AVS Assets or the operation of the Business or ownership of the Transferred Assets prior to the ClosingAVS Business, other than Excluded Taxes, (vii) any portion of any Transfer Taxes allocable to Acquiror pursuant to Section 9.05 which were, in each case, paid by Seller, (iii) Taxes resulting from or arising in connection with any breach by Acquiror or any of its Affiliates of any covenant in this Agreement, and (iv) reasonable costs and expenses, including reasonable legal fees and expenses, attributable to any “subpart F income” item in clauses (i) through (iii). Subject to Section 9.08(c), Acquiror’s obligation to indemnify, defend or hold harmless Seller or any of its Affiliates from Taxes pursuant to this Section 9.03(b) will terminate effective 60 calendar days following the expiration of the applicable statute of limitations (including extensions).
(c) In the case of any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely property Taxes and similar periodic Taxes imposed on or with respect to the extent such subpart F income is attributable to AVS Assets or the AVS Business for a Straddle Period that are not based on income or earnings receipts (e.g., annual franchise Taxes imposed based on authorized shares), the portion of a Transferred Entity for such Taxes allocable to a Pre-Closing Tax Period will be computed based upon the ratio of (A) the number of days in the portion of such Straddle Period that ends on the Closing Date to (B) the total number of days in such Straddle Period. In the case of any other Taxes imposed on or with respect to the AVS Assets or the AVS Business for a Straddle Period, the portion of such Taxes allocable to a Pre-Closing Tax Period will be determined as if such Straddle Period ended as of the close of business on the Closing Date; provided, that exemptions, allowances or deductions that are calculated on an annual basis will be allocated between the portion of the Straddle Period ending on the Closing Date and the portion of the Straddle Period ending after the Closing Date in accordance with proportion to the principles set forth number of days in each such period. NAI-1504903777v10
(d) Any indemnity payment required to be made pursuant to this Section 8.03(a)9.03 will be made within 30 calendar days after the Indemnitee makes written demand upon the Indemnifying Party, but in no case earlier than five Business Days prior to the date on which the relevant Taxes are required to be paid to the applicable Taxing Authority.
(e) If a claim or other Tax Proceeding is made or initiated by any Taxing Authority which, if successful, could result in an indemnity payment pursuant to Section 9.03 (a “Tax Claim”), but excluding the Party receiving notice of such Tax Claim will promptly notify the other Party in writing of such claim (and provide copies of any documents received from the Taxing Authority in respect of such inclusion claim) no later than ten Business Days after such Tax Claim is made; provided, that failure to provide such notice will not relieve such other Party of its indemnification obligations except to the extent that such other Party is attributable materially prejudiced by such failure. With respect to actions taken by Purchaser any Tax Claim relating to a Tax period ending on or before the Closing Date or otherwise relating to, or affecting, a Consolidated Tax Return of Seller or any of its Affiliates after Affiliates, Seller will control, at its own expense, all proceedings and may make all decisions taken in connection with such Tax Claim (including selection of counsel), and, without limiting the Closingforegoing, (vi) may, in its sole discretion, pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any Taxing Authority with respect thereto, and may, in its sole discretion, either pay the applicable Liability for Taxes attributable and xxx for a refund or contest the Tax Claim. The Party controlling a Tax Claim shall, upon request, consult with and keep the non-controlling Party reasonably informed as to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale pursuit of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Claim.
(bf) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating Acquiror will control all Tax Claims with respect to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to the AVS Assets or the AVS Business for a Straddle Period; provided, however, that Acquiror will not settle, compromise or abandon any Post-Closing such Tax PeriodClaim without the prior written consent of Seller, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall consent will not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)unreasonably withheld, conditioned or delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cooper-Standard Holdings Inc.)
Tax Indemnification. (a) From and after the Closing Date, Seller Sellers shall indemnify the Purchaser Indemnified Persons against and hold them harmless (freistellen) Purchaser, or at the election of Purchaser, the respective Target Group Company from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against:
(i) any liability for any Taxes imposed relating to time periods prior to or arising on the Business or Closing Date (for the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result avoidance of doubt for interest and penalties also for the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and period after the Closing Date if they are assessed on Taxes until and including the Closing Date), Purchaser and whereby such indemnification shall only apply if Taxes are actually levied on any of the Transferred Entities shallTarget Group Companies or a legal successor, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanbut not, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) if any increased taxable income may be set-off against tax loss carry forwards until the Closing Date; with respect to Taxes payable for a Tax period (Veranlagungszeitraum/Erhebungszeitraum) which begins prior to the Closing Date and which ends after such date (a “Straddle Period”), the portion of such Taxes allocable to the period prior to the Closing Date shall be computed as if this period until Closing Date was a separate fiscal year (however with respect to interest/ Tax loss carry forwards and ongoing Tax losses the transactions contemplated by this Agreement and a potential forfeiture of those losses shall be considered in such a Straddle Period); and
(ii) any Post-Closing damage resulting from a breach of the Tax Period, except warranty provided in Section 8.20.
(b) Seller’s obligation set out in Section 7.1(a) does not apply if and to the extent such Taxes:
(i) have been paid by any Target Group Company before Closing or accrued for as Tax liabilities/provisions in the Closing Accounts irrespective of whether such liability or provision relates to the specific Taxes giving rise to such claim;
(ii) have been recovered, or are attributable recoverable through commercially reasonable efforts, by Purchaser or any of the Target Group Companies from any third party (particularly under an insurance policy), but only in the net amount after Taxes in case the recovery is taxable;
(iii) result from a change of accounting methods for Taxes or practices for Taxes by Purchaser or Target Group Companies after the Closing Date that A.Prot. 2014/125 CuS 49 relate to a breach the period before the Closing Date unless such change, Taxation or practice is required by Law for periods prior to the Closing Date;
(iv) are the result of any representation set forth in Section 4.15(kreorganization, restructuring, transformation, change of corporate form or action of Purchaser and/or the Target Group Companies after the Closing Date with retroactive effect prior to the Closing Date;
(v) correspond to or Section 4.15(l) can be offset against reductions, refunds or any inaccuracy in Section 4.15(h) other kind of savings of Taxes, inter alia, due to the lengthening of depreciation periods or higher depreciation allowances or from a transfer of taxable items or events from one calendar or fiscal year into another or from one legal entity to another (together the “Tax Benefits”); it being understood that the net present value of the Seller Disclosure Letter Tax Benefit shall be considered if it materializes within five (as such Section 5) years after the Closing Date and that the net present value shall be calculated on the basis of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), Tax rates applicable at the Closing Date and an applied discount factor of five (5) per cent per annum. For the avoidance of doubt: (i) quasi permanent effects; (ii) any Taxes taken into account in Tax Benefits that relate to a step-up triggered by the adjustment described in Section 2.04, execution or consummation of this Agreement and/or the termination of the Silent Partnership; and (iii) a reduction of the step-up which otherwise would have been triggered by the execution or consummation of this Agreement and/or the termination of the Silent Partnership shall not be considered;
(vi) the respective Taxes have been caused by a material non-compliance of any Taxes attributable to Target Group Company, Purchaser, or any breach of their Affiliates after the Closing Date with the procedures set forth under this Agreement; or
(vii) result from income that may be offset against a loss-carry back or nonperformance loss carry forward available at the level of the relevant Target Group Company and generated in periods or portions thereof ending on or before the Closing Date.
(c) Indemnification payments made by Sellers under Section 7.1(a) shall become due on the tenth (10th) Business Day after Sellers’ receipt of Purchaser’s obligations pursuant written notice that a Tax liability to Article VIIIbe indemnified has occurred (including notification about the corresponding payment date and a copy of the underlying Tax assessment or payment order), and (iv) any Transfer but in no case earlier than ten days before the date at which the underlying Tax becomes due for payment. Purchaser shall procure at Seller’s cost that the Target Group Companies undertake commercially reasonable efforts at Sellers’ expense to achieve a deferred payment date, in par-
A. Prot. 2014/125 CuS 50 ticular but not limited to the application for a suspension of enforcement of tax payment obligation or equivalent application in foreign jurisdiction, to the extent legally available, unless instructed otherwise by Sellers. If the amount of Taxes for which an indemnification payment has been made is subsequently reduced, the difference between the higher indemnification payment and the lower amount of Taxes shall be reimbursed by Purchaser is liable under to Sellers, including all interests after Taxes (net) related thereto. Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a7.4(c) and Section 11.07(b)(i10.10 shall apply mutatis mutandis to the existence of over indemnification and the reimbursement obligation of Purchaser.
(d) Any payments made pursuant to this Section 7.1 shall not be construed as limiting made free of any indemnity set forth in clause (vii) of Section 11.07(a)withholding or deduction save where such withholding or deduction is required by Law.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Tax Indemnification. (a) From In addition to the indemnification obligations set forth in Sections 9.1 and after the Closing Date9.5, Seller and EPCOS Germany, on a joint and several basis, shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of and against (i) any all Taxes imposed on the Transferred Assets, the Business (or the Transferred Entities non-payment thereof) of JV Holding Singapore and of the JV Subsidiaries or relating to the Acquired Assets or the Assumed Liabilities or the transfers of Acquired Assets set forth in Section 2.2(c) or the assumption of the Assumed Liabilities for any Taxable period ending on or before the JV Closing Date and the portion through the JV Closing Date of any Straddle Period (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post“Pre-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)”), (ii) any and all Taxes taken into account in of any Person imposed on JV Holding Singapore or any JV Subsidiary or relating to the adjustment described Acquired Assets or the transfers of Acquired Assets set forth in Section 2.042.2(c) as a transferee or successor, by contract or pursuant to any Applicable Law, which Taxes relate to an event or transaction occurring before the JV Closing Date, (iii) any Taxes attributable Tax payable by German Newco resulting from the assumption of the German pension liability in the EPCOS Germany Contribution Agreement, which is not offset by the net present value of the corresponding tax benefits, calculated using a discount rate equal to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII3.89% per annum, and (iv) any Transfer and all Taxes imposed on EPCOS Germany or to be withheld by Purchaser related to the indirect transfer of the interest in EPCOS Technology Wuxi and/or Wuxi Newco as a result of the transfer of Acquired JV Interests upon the JV Closing; and (v) any and all Taxes imposed on EPCOS Germany or to be withheld by Purchaser related to the indirect transfer of the interest in EPCOS Technology Wuxi and/or Wuxi Newco as a result of the transfer of Retained JV Interests upon the Option Closing; provided, however, that (A) in the case of clauses (i) and (ii) above, Seller shall be liable only to the extent that such Taxes exceed the amount, if any, reserved for which Purchaser is such Taxes on the Closing Balance Sheet and included in the Final Working Capital, (B) in the case of Assumed Liabilities in clause (i) above, Seller shall be liable under only to the extent that such Taxes are not included in the gross amount of the Assumed Liabilities or accounted for in the calculation of the JV Closing Purchase Price hereunder; and (C) in the case of clause (v), Seller shall only be liable for such Taxes levied on the value assigned to EPCOS Technology Wuxi and/or Wuxi Newco in the Purchase Price Allocation prepared in accordance with Section 8.01, provided that this Section 11.07(b) 2.10 and shall not be construed liable for any such Taxes levied on value in excess of the value assigned in the Purchase Price Allocation. Seller or EPCOS Germany shall pay to Purchaser the amount of any Taxes that are the responsibility of Seller and EPCOS Germany but payable by a Purchaser Group member or JV Holding Singapore or a JV Subsidiary no later than the date on which such Taxes are due, unless otherwise agreed to by Seller and Purchaser in writing. For clarity, the Cap, the Per-Claim Threshold and the Threshold shall not apply with respect to any Taxes payable as limiting any indemnity set forth in clause this Section 9.6.
(vb) If there is a final and binding refund of Section 11.07(aTax relating to an event for the period before the JV Closing Date and relating to the Acquired Assets, the Assumed Liabilities, JV Holding Singapore and to the JV Subsidiaries, the amount of the refund of Tax and any interest actually received shall be paid by Purchaser or the applicable Purchaser Group member to Seller, any other applicable Seller Group member or the Additional Seller Group Company. Purchaser shall duly notify Seller in due course in writing of the assessment and the receipt of any refund of Tax and any interest relating to any period ending on or before the JV Closing Date. Any amount payable to Seller shall be paid within ten (10) Business Days after the refund of Tax has been received by JV Holding Singapore, the JV Subsidiaries, Purchaser or the applicable Purchaser Group member. For the avoidance of doubt, Purchaser and Section 11.07(b)(ithe applicable Purchaser Group member shall have no obligation to pay any refund of Tax nor associated interest to Seller to the extent that (i) Purchaser or any other Purchaser Group member paid (either directly or indirectly) the Tax in the first instance, or (ii) the refund of Tax was included as an asset on the Closing Balance Sheet and included in the Final Working Capital. In such case, Purchaser or such other Purchaser Group member shall be entitled to retain the refund of Tax as well as any associated interest. In addition, neither Purchaser nor any other Purchaser Group member shall have any affirmative obligation to file any refund claim relating to the Pre-Closing Tax Period.
(c) The Parties agree that each of the JV Closing Purchase Price and the Option Price is a net amount without VAT. If the Taxing Authorities do not agree and VAT will be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)due, the assessed VAT will be invoiced separately, if applicable. The Parties undertake to not opt for a VAT-able treatment.
Appears in 1 contract
Tax Indemnification. 2.1 VERICHIP'S TAX INDEMNIFICATION FOR THE PRE-DECONSOLIDATION DATE PERIOD: VeriChip shall be liable for, indemnify, and hold Applied Digital harmless for all Taxes (ai) From imposed on or incurred by VeriChip for the Pre-Deconsolidation Date Period and (ii) equitably apportioned to VeriChip by Applied Digital for all tax periods beginning before and ending after the Closing Deconsolidation Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except . Except as provided in Section 11.07(b2.2(c), VeriChip, in turn, shall be entitled to receive all refunds of Taxes attributable to the Pre-Deconsolidation Date Period, if any, that are imposed or incurred by VeriChip or equitably apportioned to VeriChip from either the applicable tax authorities or Applied Digital (in the event such refund(s) have been made directly to Applied Digital).
2.2 VERICHIP'S 2006 TAX LIABILITY AND PAYMENT
(a) VeriChip's liability for Taxes for the portion of the Pre-Deconsolidation Date Period attributable to the tax year in which the Deconsolidation Date occurs shall be based on Applied Digital's preparation of the Consolidated Return for such taxable year and VeriChip's review thereof. Any discrepancies between Applied Digital's return position and VeriChip's subsequent review shall be resolved by consultation by each Party's respective tax officers and Applied Digital's ultimate determination shall be controlling as long as such determination does not have a material adverse effect on VeriChip's financial condition or results of operations.
(b) The Parties agree that, in determining VeriChip's allocable share of the (i) any Unitary and (ii) Consolidated Tax Liabilities for the tax year in which the Deconsolidation Date occurs, they shall follow a reasonable method agreed to by both Parties.
(c) VeriChip shall pay Applied Digital its allocable share of the estimated Unitary and Consolidated Tax Liabilities for that portion of the tax year in which the Deconsolidation Date occurs that precedes the Deconsolidation Date within 45 days from the Deconsolidation Date. A "true-up" payment, should one be necessary, shall be made by VeriChip to Applied Digital or Applied Digital to VeriChip within 15 days after Applied Digital's subsequent determination of VeriChip's liability based on taxable income and tax credits reported as part of Applied Digital's Unitary and Consolidated Returns and VeriChip's separate state Tax returns for the taxable year in which the Deconsolidation Date occurs. If there is a refund of Taxes imposed on attributable to VeriChip for that portion of the Business or tax year in which the Transferred Entities Deconsolidation Date occurs that precedes the Deconsolidation Date, VeriChip shall retain such refund, or, if such refund is received by Applied Digital, Applied Digital shall pay the amount of such refund to VeriChip within 45 days of its receipt of such refund.
(d) Applied Digital shall be liable for, indemnify, and hold VeriChip harmless for all Taxes attributable to the event of Deconsolidation, including all taxes with respect to any deferred intercompany transactions within the meaning of Treasury Regulation § 1.1502-13.
(e) In connection with any Pre-Closing Tax Deconsolidation Date Period, neither Party to the Agreement will be required to compensate the other Party for any net operating losses incurred by that other Party that reduce the consolidated tax liability of the Consolidated Group or the taxable income of other members of the Consolidated Group. The same results shall apply for any Pre-Deconsolidation Date Period (including net operating losses that reduce the consolidated tax liability of the Consolidated Group or the taxable income of the other members of the Consolidated Group in connection with the use of such net operating loss as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered an audit by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. Internal Revenue Service, or by any special business income (Sonderbetriebseinnahmen) state or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)local tax authority.
Appears in 1 contract
Samples: Tax Allocation Agreement (Applied Digital Solutions Inc)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) The Stockholders shall, during the Tax Indemnification Period, indemnify and hold Purchaser harmless from and against the following: (1) any liability for Taxes imposed on the Business Company for any taxable year or period that ends on or before the Transferred Entities Closing Date (including Taxes attributable to the Section 338(h)(10) Election) and, with respect to any Pre-Straddle Period, the portion of such Straddle Period deemed to end on and include the Closing Tax Period Date (including as determined pursuant to SECTION 7.4.4); (2) any liability for a result breach of the Prerepresentations in SECTION 3.3.18 (to the extent not payable pursuant to subsection (1) hereof); and (3) Transfer Taxes; provided, however, that the Stockholders shall not be liable for and shall not indemnify Purchaser for one-Closing Restructuringhalf of Taxes imposed on the Company by New York State or a locality therein that are attributable to the Section 338(h)(10) Election (as such, the "EXCLUDED TAXES"), ;
(ii) Purchaser shall, during the Tax Indemnification Period, indemnify and hold the Stockholders harmless from and against the following: (1) Taxes imposed on the Company for any Taxes taxable year or period that are Retained Liabilities hereunderbegins after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date (determined pursuant to SECTION 7.4.4); and (2) Excluded Taxes; provided, however, that Purchaser shall not be liable for and shall not indemnify the Stockholders for Transfer Taxes;
(iii) For purposes hereof, the term "TAX INDEMNIFICATION PERIOD" shall mean, with respect to any obligation with respect to Taxes imposed on a Transferred Entity payable by any party pursuant to THIS SECTION 7.4 (including any Taxes imposed under Treasury Regulations Section 1.1502Tax-6 or Related Payment), the period commencing on the Closing Date and ending on the sixtieth (60th) day (the "TAX INDEMNIFICATION CUT-OFF DATE") following the expiration of the applicable statute of limitations with respect to such obligation for Taxes; provided, however, that the Tax Indemnification Period shall be automatically extended with respect to any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any and all Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets Tax Indemnification Notice has been delivered prior to the ClosingTax Indemnification Cut-Off Date, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of until the Code) required to be included in income in a Postdate upon which the Tax-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (Related Payment, if any, has been determined and made in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any provisions of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)SECTION 7.4.11 hereof.
Appears in 1 contract
Samples: Shareholder Agreement (Karan Donna)
Tax Indemnification. (a) From Except to the extent of amounts relating to Income Taxes set forth on the Final Closing Balance Sheet under the headings “State Income Tax Payable”, “Tax Liability – Current” or “Franchise Tax Payable”, Sellers shall pay or cause to be paid, shall be liable for, and shall jointly and severally indemnify, defend and hold Buyers and their Affiliates (including the Company and the Company Subsidiaries after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them ) harmless from and against (i) any and all Excluded Taxes, and (ii) any and all Losses incurred by Buyers or any of their Affiliates to the extent arising fromout of or resulting from the breach of a representation or warranty (disregarding any materiality, relating knowledge or Company Material Adverse Effect qualification therein), agreement or covenant made Sections 2.19 or 5.1(b)(xiii) (to the extent that such representation, warranty, agreement or otherwise covenant relates to Income Taxes) or in respect ofthis Article VIII; provided, except as provided however, that if and to the extent that there are no amounts available in Section 11.07(b)the Escrow Fund to satisfy such indemnification obligations, (i) Sun Mortgage Partners’ indemnification obligation under this Section 8.2(a) shall be several but not joint with the Henschels for any Taxes imposed on the Business or the Transferred Entities breach attributable to Sun Mortgage Partners, and (ii) each Xxxxxxxx’x indemnification obligation under this Section 8.2(a) shall be joint and several with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion each other Xxxxxxxx but several and not joint with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, respect to Sun Mortgage Partners for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are breach attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Xxxxxxxx.
(b) From Buyers shall pay or cause to be paid, shall be liable for, and after shall indemnify, defend and hold Sellers harmless from and against any and all Taxes of the Closing Date, Purchaser Company and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Company Subsidiaries other than Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, 8.2(a).
(iiic) Payment in full of any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable amount due under Section 8.01, provided that this Section 11.07(b8.2 shall be made to the affected party by Wire Transfer at least two (2) shall not be construed as limiting any indemnity set forth in clause Business Days before the date payment of the Taxes to which such payment relates is due, or, if no Tax is payable, within ten (v10) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Business Days after written demand is made for such payment.
Appears in 1 contract
Samples: Securities Purchase Agreement (Friedman Billings Ramsey Group Inc)
Tax Indemnification. (a) From and after the Closing Date, Seller shall indemnify the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) Without duplication, GPU shall indemnify, defend and hold Buyer and Genco harmless from and against any and all Taxes imposed on (including interest and penalties) which may be suffered or incurred by Buyer or Genco in respect of or relating to, directly or indirectly (x) Taxes of or attributable to Genco for all pre-Closing periods, (y) Taxes of or attributable to Genco with respect to the Business or pre-Closing portion of the Transferred Entities Straddle period, and (z) Taxes payable by Genco with respect to any Prepre-Closing period or Straddle Period by reason of Genco being severally liable for the Tax Period (including as a result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Tax Affiliate pursuant to Treasury Regulations Section Regulation 1.1502-6 or any corresponding provision of stateanalogous state or local Tax law.
(ii) Without duplication, local or non-U.S. Tax Law) as a result Buyer shall indemnify, defend and hold GPU and each of its inclusion Affiliates harmless from and against any and all Taxes (including interest and penalties) which may be suffered or incurred by them in respect of or relating to, directly or indirectly (x) Taxes of or attributable to Genco with Sellerrespect to all post-Closing periods, and (y) Taxes of or attributable to Genco with respect to the post-Closing portion of any Subsidiary Transferor Straddle Period.
(iii) An indemnity payment due under this Section 6.8(e)(4) shall be made within thirty (30) days after (i) the party in control of the issue under Section 6.8(e)(3) determines not to contest the issue, the receipt of a formal notice or assessment from a taxing authority or the occurrence of any other event giving rise to the payment subject to an indemnity, or (ii) if the party in control of the issue under Section 6.8(e)(4) determines to contest the issue, the earlier of the signing of a closing agreement or settlement agreement or any other Person (other than a Transferred Entity) in a consolidatedsimilar agreement with the relevant tax authorities, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings receipt of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) deficiency notice with respect to any Post-Closing Tax Periodwhich the period for filing a petition with the relevant court has expired, except to the extent such Taxes are attributable to or a breach decision of any representation set forth in Section 4.15(k) court of competent jurisdiction which is not subject to appeal or Section 4.15(l) or any inaccuracy in Section 4.15(h) of as to which the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes time for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)appeal has expired.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Electric Co)
Tax Indemnification. (a) From and after Except to the extent treated as a liability in Closing DateWorking Capital or as Closing Indebtedness, Seller and ExchangeCo shall indemnify indemnify, jointly and severally, the Purchaser Indemnified Persons against Company Group, Buyer and their Affiliates from and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), against:
(i) any Taxes imposed on the Business or the Transferred Entities with respect Loss attributable to any Pre-Closing Tax Period (including as a result breach of the Pre-Closing Restructuring), or inaccuracy in any representation or warranty made in Section 3.25;
(ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes Loss attributable to any breach or violation of of, or failure to fully perform, any covenant, agreement, undertaking or obligation of Seller’s representations set forth , ExchangeCo or their Affiliates in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Article VI;
(biii) From all Indemnified Taxes;
(iv) reasonable out-of-pocket fees and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from expenses attributable to any Losses arising from, relating to or otherwise item described in respect of clause (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) or (iii). Seller and ExchangeCo shall pay (x) any such Taxes taken into account Seller or ExchangeCo is responsible for which are reportable on a Tax Return due after the Closing Date at the time and in the adjustment described manner specified in Section 2.046.01(c), and (iiiy) any other Taxes for which it is responsible to pay under this Section 6.03 upon a determination that Tax is payable or on written demand, whichever is later, subject to Section 6.10. Seller and ExchangeCo shall not be liable for indemnification under this Section 6.03 until the aggregate amount of all Losses in respect of indemnification under this Section 6.03 exceeds Ten Thousand Dollars ($10,000), in which event Seller and ExchangeCo shall be required to pay or be liable for all such Losses from the first dollar. The indemnification provided by Seller and ExchangeCo pursuant to Section 6.03(a) shall not exceed Five Hundred Thousand Dollars ($500,000). Securities Purchase Agreement 74 Project Acorn
(b) Except to the extent treated as an asset in Closing Working Capital, Buyer shall indemnify the Seller and its Affiliates from and hold them harmless against any Loss attributable to any breach or nonperformance violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation of Purchaser’s obligations Buyer or its Affiliates in Article VI. The indemnification provided by Buyer pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b6.03(b) shall not be construed as limiting any indemnity set forth in clause exceed Five Hundred Thousand Dollars (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a$500,000).
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing DateIn addition to Section 10.2, without duplication, Seller shall agrees to indemnify and hold harmless the Purchaser Indemnified Persons against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), Damages for (i) any Taxes imposed on the Business or the Transferred Entities Company with respect to any Tax periods ending on or prior to the Closing Date (a “Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), Period”) and (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on the Company with respect to Tax periods beginning before and ending after the Closing Date, but only with respect to the portion of such period up to and including the Closing Date (such portion, a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any “Pre-Closing Tax Partial Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes”), in each case, to the extent such Taxes are attributable allocable pursuant to Section 11.4(b) to the operation Pre-Closing Partial Period, including, without limitation, any Taxes (other than Transfer Taxes which are governed under Section 12.2) arising as a result of the Business transactions contemplated in this Agreement to be undertaken by Seller or ownership of the Transferred Assets Company (including, without limitation, the Conversion described in Sections 4.11) on or prior to the ClosingClosing Date. Notwithstanding the foregoing, (v) any Seller shall not be liable to the Indemnified Parties for Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. amount of Taxes that are taken into account in determining Closing Working Capital or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred AssetsCompany that are payable as a result of any events occurring on the Closing Date after the Closing that are outside of the ordinary course of business. Seller’s indemnification obligation under this Section 10.7 shall survive the Closing for a period of three (3) years and as provided in Section 10.5, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) Seller’s indemnification obligations with respect to any Post-Closing Tax Period, except Taxes (other than Income Taxes) shall be subject to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)Basket.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing DateClosing, Seller and Seller’s Stockholder Representative shall be liable for, and shall jointly and severally indemnify Parent, Purchaser, its affiliates (including the Company and the Subsidiaries) and each of their respective officers, directors, employees, stockholders, agents and representatives (Purchaser Indemnified Persons Indemnitees) against and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) any excess of (x) the liability for Taxes imposed of the Company and the Subsidiaries over (y) charges, accruals, and reserves for Taxes reflected on the Business or Financial Statements and the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of Statement for the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (ivii) any all liability (as a result of Treasury Regulation §1.1502-6(a) or otherwise) for Taxes for which a Transferred Entity, Purchaser of Seller or any Affiliate of Purchaser other corporation that is liable as a transferee or successor or by Contract has been affiliated with Seller (other than Contracts that do not primarily relate to Taxesthe Company or any Subsidiaries), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (viii) all liability for reasonable legal fees and expenses for any Taxes item attributable to any “subpart F income” item in subclause (including i) or (ii) above; and (iv) all reasonable fees and expenses incurred by Parent in connection with the preparation and filing of any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity Return for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Periods that Parent is required to file pursuant to Section 8.03(a5.7(a) and Section 5.7(e)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V..
(b) From and after the Closing DateClosing, Purchaser Parent and the Transferred Entities shallCompany, jointly and severally, shall indemnify the Seller Indemnified Persons against and hold them Seller harmless from any Losses arising from, relating to or otherwise in respect of (i) any all liability for Taxes imposed on of the Transferred Assets, Company and the Business or Subsidiaries relating to the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), Period and (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes all liability for reasonable legal fees and expenses attributable to any breach or nonperformance of Purchaser’s obligations pursuant item in subclause (i) above.
(c) Any indemnity payment to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable be made under Section 8.01, provided that this Section 11.07(b) 8.1 shall not be construed paid within 10 Business Days after the indemnified party makes written demand upon the indemnifying party, but in no case earlier than five business days prior to the date on which the relevant Taxes are required to be paid to the relevant Taxing Authority (including as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(aestimated Tax payments).
Appears in 1 contract
Samples: Stock Purchase Agreement (Factset Research Systems Inc)
Tax Indemnification. (aSubject to Sections 8.4(h) From and 8.5, from and after the Closing Date, Seller the Newco Indemnitees shall indemnify the Purchaser Indemnified Persons against be indemnified by and hold them held harmless from any Losses and against, and shall be reimbursed for all Damages (including, without limitation, reasonable fees for both in-house and outside counsel, accountants and other outside consultants) suffered or incurred (each a “Tax Loss” and collectively, the “Tax Losses”) for or arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), out of (i) Pre-Closing Taxes in excess of the amount of Taxes which are included as Current Liabilities (excluding any reserve for deferred taxes established to reflect timing differences between book and Tax income, a “Deferred Tax Reserve”) on the Final Statement and (ii) without duplication, any Taxes imposed on the Business arising out of a breach of a representation or warranty in Section 3.8, or the Transferred Entities with respect covenants and agreements set forth in Sections 5.1(d)(xxi), 5.1(d)(xxii) or 5.1(d)(xxiii). For the purposes of this Section 8.6, indemnifiable Taxes shall not include Taxes for a taxable period beginning after the Closing Date that are attributable to any reduction directly or indirectly resulting from an audit, examination, or the filing of an amended Tax Return (in each case for a Pre-Closing Tax Period (including as a result Period) to the net operating losses or similar Tax attributes reflected on the Tax Returns of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 Company or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Company Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period. Notwithstanding anything to the contrary contained in this Section 8.6, (iv) any Taxes the Newco Indemnitees shall have recourse for which a Transferred Entityindemnification under this Section 8.6 solely to, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, and to the extent of, the Indemnity Escrow Account and no other Person shall have any liability for such Taxes are attributable to indemnification, including the operation holders of Company Preferred Stock, Company Common Stock or RSUs, the Business or ownership of the Transferred Assets prior to the ClosingStockholder Representative, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)their respective Affiliates.
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller shall Enron hereby agrees to indemnify the Purchaser Indemnified Persons against and hold them the PGE Indemnified Parties harmless from and against any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), (i) and all Taxes of any member of the PGE Group that are imposed upon such member of the PGE Group by reason of such member of the PGE Group being severally liable for any Taxes imposed on the Business or the Transferred Entities with respect to of any Pre-Closing Tax Period (including as a result member of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on Enron Group which is not a Transferred Entity (including any Taxes imposed under member of the PGE Group pursuant to Treasury Regulations Regulation Section 1.1502-6 6(a) or any corresponding provision of analogous state, local or non-U.S. Tax Law) as a result of its inclusion with Sellerforeign law; provided, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to (x) imposed upon or assessed against any PGE Indemnified Party or the operation of assets or the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, properties thereof and (viiiy) any German business Taxes assessed before assessment of Spectrum Brands Real Estate B.V. in such Tax is barred under the meaning applicable statute of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, limitations relating to or otherwise in respect of (i) any Taxes imposed on such Tax and provided, further, that the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of this Section 11.07(a) and Section 11.07(b)(i3.1(a) shall not be construed as limiting affect the obligation of any indemnity set forth member of the PGE Group to make payments pursuant to any order of the Bankruptcy Court, the Tax Allocation Agreement or any other agreement between any member of the Enron Group, on one hand, and any member of the PGE Group, on the other hand, to allocate liability for Taxes. Enron also shall indemnify and hold harmless the PGE Indemnified Parties from and against any Liabilities (other than Taxes assessed on any indemnification payment received by the PGE Indemnified Parties pursuant to this Article III) incurred in clause (vii) of connection with the Taxes for which Enron is responsible to indemnify the PGE Indemnified Parties pursuant to Section 11.07(a3.1(a).
Appears in 1 contract
Samples: Separation Agreement (Portland General Electric Co /Or/)
Tax Indemnification. (ai) From The Purchaser shall indemnify, defend and hold harmless the Seller and its Affiliates, at any time after the Closing, from and against any liability for Taxes of ATI and SCS for any taxable period ending after the Closing Date, including any Taxes resulting solely from a transaction undertaken by the Purchaser or its Affiliates with respect to ATI or SCS after the Closing that are not otherwise contemplated by this Agreement, except for Straddle Periods, in which case the Purchaser's indemnity will cover only that portion of any such Taxes that is not attributable to the Pre-Closing Period.
(ii) The Seller shall indemnify indemnify, defend and hold harmless the Purchaser Indemnified Persons and its Affiliates, at any time after the Closing, from and against any liability for (A) Taxes of ATI and hold them harmless from any Losses arising from, relating to or otherwise in respect ofSCS, except as provided in Section 11.07(b)6.8(d)(vii) of the Agreement, (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of for the Pre-Closing RestructuringPeriod (including the portion of any Straddle Period ending on the Closing Date), including any Damages resulting from the distribution of the Retained Assets to the Seller pursuant to Section 2.6 hereof; and (iiB) Damages attributable to (1) any Taxes breach of the representation contained in Section 4.20 or (2) the failure of the Seller (or any member of the affiliated group that are Retained Liabilities hereunder, includes the Seller) to comply with Seller's obligations in Section 6.8(b).
(iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to In determining the extent such Taxes are attributable to the operation responsibility of the Business or ownership of Seller and the Transferred Assets prior to the Closing, (v) any Purchaser for Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 Straddle Period, Taxes based upon or related to gross or net income or receipts shall be apportioned on the basis of an interim closing of the Codebooks as of the Closing Date, and all other Taxes attributable to any Straddle Period shall be prorated on a daily basis.
(iv) required If a claim for Taxes shall be made by any taxing authority in writing, which, if successful, might result in an indemnity payment pursuant to be included this Section 6.8, the party seeking indemnification (the "Tax Indemnified Party") shall promptly notify the other party (the "Tax Indemnifying Party") in income writing of such claim (a "Tax Claim") within a reasonably sufficient period of time to allow the Tax Indemnifying Party effectively to contest such Tax Claim, and in reasonable detail to apprise the Tax Indemnifying Party of the nature of the Tax Claim, and provide copies of all correspondence and documents received by it from the relevant taxing authority. Failure to give prompt notice of a Post-Closing Tax Period solely Claim hereunder shall affect the Tax Indemnifying Party's obligation under this Section to the extent that the Tax Indemnifying Party is prejudiced by such subpart F income is failure to give prompt notice.
(v) With respect to any Tax Claim which might result in an indemnity payment to the Purchaser pursuant to this Section 6.8(f), the party potentially liable for such indemnification shall control all proceedings taken in connection with such Tax Claim and, without limiting the foregoing, may in its sole discretion and at its sole expense pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and xxx for a refund where applicable law permits such refund suits or contest such Tax Claim. The Tax Indemnified Party shall not under any circumstances settle or otherwise compromise any Tax Claim referred to in the preceding sentence without the Tax Indemnifying Party's prior written consent. In connection with any proceeding taken in connection with such Tax Claim, each party shall keep the other informed of all material developments and events relating to such Tax Claim if involving a material liability for Taxes. Each party shall cooperate with the other in contesting such Tax Claim, which cooperation shall include, without limitation, the retention and the provision of records and information which are reasonably relevant to such Tax Claim, and making employees available to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim, provided that no charges shall be incurred for the services of such employees.
(vi) The Seller and the Purchaser shall jointly control, at each party's own cost and expense, all proceedings taken in connection with any Tax Claim relating solely to Taxes attributable to income or earnings a Straddle Period, and neither the Seller nor the Purchaser shall settle a Tax Claim relating to such Straddle Period Taxes without the prior written consent of a Transferred Entity for a Pre-Closing the other party, which consent shall not be unreasonably withheld.
(vii) The amount of any Taxes payable under this Section 6.8 shall be net of any tax benefit actually realized therefrom.
(viii) All matters relating in any manner to Tax Period (determined in accordance with indemnification obligations and payment of Taxes shall be governed exclusively by this Section 6.8; provided, however, that any indemnity relating to Section 6.8(f)(ii)(B) shall be subject to the principles limitations on liability set forth in Section 8.03(a))9.2.
(ix) The representations, but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after warranties, covenants and agreements contained in this Section 6.8 shall survive until the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale expiration of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income applicable statute of limitations (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(viincluding extensions)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).. ARTICLE VII
Appears in 1 contract
Samples: Stock Purchase Agreement (Eschelon Telecom of California, Inc.)
Tax Indemnification. 1
(a) From and after Xxxx and, upon the Closing DateEffective Date of the Plan, Seller its successor, Reorganized Xxxx, shall indemnify the Purchaser Indemnified Persons against Affinia Entities and hold them harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), all Liability for all pending and future (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring), Excluded Taxes; (ii) any Transfer Taxes that are Retained Liabilities hereunder, and VAT required to be borne by Xxxx pursuant to Section 8 below; and (iii) any Taxes imposed on a Transferred Entity (all costs and expenses, including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of statereasonable legal fees and expenses, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” item in clauses (including any increase thereto under Section 965 of the Codei) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.ii).
(b) From Affinia shall indemnify Xxxx and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons its Affiliates and hold them harmless from all Liability for all pending and future (i) Taxes imposed on or payable with respect to the Acquired Companies or the Business, other than Excluded Taxes; (ii) Transfer Taxes and VAT required to be borne by Affinia and the Affinia Entities pursuant to Section 8 below; (iii) an amount equal to the product of (A) 28% and (B) Incremental Subpart F Income; and (iv) all costs and expenses, including reasonable legal fees and expenses, attributable to any Losses arising from, relating item in clauses (i) through (iii).
(c) Any indemnity payment to or otherwise in respect be made pursuant to this Section 1 shall be paid no later than the later of (i) any Taxes imposed on ten days after the Transferred Assets, indemnified party makes written demand upon the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), indemnifying party and (ii) any Taxes taken into account in five days prior to the adjustment described in Section 2.04date on which the underlying amount is required to be paid by the indemnified party (provided that, (iii) any Taxes attributable where no payment is required to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIIIbe made by the indemnified party, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) the indemnity payment shall not be construed as limiting any indemnity set forth made at the time specified in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(ai)).
(d) The indemnification provisions in this Section 1 shall survive until the expiration of any applicable statute of limitations.
Appears in 1 contract
Tax Indemnification. (ai) From Buyer shall indemnify, defend and hold harmless Seller and its Affiliates, at any time after the Closing, from and against any liability for Taxes of the Company for any taxable period ending after the Closing DateDate (except for Straddle Periods, in which case Buyer?s indemnity will cover all such Taxes other than taxes based upon or related to gross or net income, in which case, Buyer's indemnity will cover only that portion of such income Taxes that is not attributable to the Pre- Closing Period).
(ii) Seller shall indemnify the Purchaser Indemnified Persons against indemnify, defend and hold them harmless Buyer and its Affiliates, at any time after the Closing, from and against any Losses arising from, relating liability for Taxes based upon or related to gross or otherwise in respect of, except as provided in Section 11.07(b), (i) any Taxes imposed on net income of the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of Company for the Pre-Closing RestructuringPeriod (including the portion of any Straddle Period ending on the Closing Date), (ii) any Taxes that are Retained Liabilities hereunder, .
(iii) In determining the responsibility of Seller and Buyer for Taxes based upon or related to gross or net income attributable to any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Straddle Period, such income Taxes shall be apportioned on the basis of an interim closing of the books as of the Closing Date.
(iv) If a claim for Taxes shall be made by any Taxes for which taxing authority in writing, which, if successful, might result in an indemnity payment pursuant to this Section 5.8, the party seeking indemnification (the "Tax Indemnified Party") shall promptly notify the other party (the "Tax Indemnifying Party") in writing of such claim (a Transferred Entity"Tax Claim") within a reasonably sufficient period of time to allow the Tax Indemnifying Party effectively to contest such Tax Claim, Purchaser or any Affiliate and in reasonable detail to apprise the Tax Indemnifying Party of Purchaser is liable as the nature of the Tax Claim, and provide copies of all correspondence and documents received by it from the relevant taxing authority. Failure to give prompt notice of a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, Tax Claim hereunder shall affect the Tax Indemnifying Party's obligation under this Section 5.8(d) to the extent that the Tax Indemnifying Party is prejudiced by such Taxes are attributable failure to the operation of the Business or ownership of the Transferred Assets prior to the Closing, give prompt notice.
(v) any Taxes attributable With respect to any “subpart F income” Tax Claim which might result in an indemnity payment to Buyer pursuant to this Section 5.8(d) (including any increase thereto under Section 965 including, without limitation, income Taxes of the CodeCompany for a Straddle Period), Seller shall control all proceedings taken in connection with such Tax Claim and, without limiting the foregoing, may in its sole discretion and at its sole expense pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any taxing authority with respect thereto, and may, in its sole discretion, either pay the Tax claimed and xxx for a refund where applicable law permits such refund suits or contest such Tax Claim. Buyer shall not under any circumstances settle or otherwise compromise any Tax Claim referred to in the preceding sentence without Seller's prior written consent. In connection with any proceeding taken in connection with such Tax Claim, (A) required Seller shall keep Buyer informed of all material developments and events relating to be included such Tax Claim if involving a material liability for Taxes and (B) Buyer shall have the right, at its sole expense, to participate in income any such proceedings. Buyer shall cooperate in a Post-Closing commercially reasonable manner with Seller in contesting such Tax Period solely Claim (without charge to Seller), which cooperation shall include, without limitation, the extent retention and the provision to Seller of records and information which are reasonably relevant to such subpart F income is attributable Tax Claim, and making employees reasonably available to income Seller to provide additional information or earnings explanation of a Transferred Entity any material provided hereunder or to testify at proceedings relating to such Tax Claim, provided that no charges shall be incurred by Seller for a Pre-Closing the services of such employees.
(vi) With respect to any Tax Period (determined Claim not described in Section 5.8(d)(v) hereof which might result in an indemnity payment to Seller pursuant hereto, Buyer shall control all proceedings in accordance with the principles set forth provisions that are parallel to those in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi5.8(d)(v) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)hereof.
Appears in 1 contract
Tax Indemnification. (a) From Subject to Section 10.2(b)(ii) and to the extent not accrued on the Closing Balance Sheet, Olivetti shall indemnify, defend and hold harmless Wang and its Affiliates (including, 127 136 after the Closing Date, Seller shall indemnify Olsy, Olsy Japan, Olsy Brazil and any Controlled Subsidiary) and their respective officers, directors, employees and agents (collectively, the Purchaser "Wang Tax Indemnified Persons Parties") from and against any and hold them harmless all Taxes, claims or damages imposed on, sustained, incurred or suffered by any Wang Tax Indemnified Party, directly or indirectly, by reason of or resulting from any Losses and all Taxes imposed upon Olsy, Olsy Japan, Olsy Brazil or any Controlled Subsidiary (other than claims or damages solely arising fromas a result of any Taxes imposed due to any failure by Wang or its Affiliates, including, after the Closing Date, Olsy, Olsy Japan, Olsy Brazil or the Controlled Subsidiaries, to fully comply with any applicable law or regulation relating to Taxes) with respect or otherwise in respect of, except as provided in Section 11.07(b), pursuant to (i) any Taxes imposed on the Business or the Transferred Entities with respect to any Pre-Closing Tax Period (including as a result of the Pre-Closing Restructuring)Period, (ii) any Taxes that are Retained Liabilities hereunderStraddle Period, but only with respect to the portion of such Straddle Period ending on the Closing Date and in the manner provided in Section 7.2(c) (such portion, a "Pre-Closing Straddle Period"), and (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section section 1.1502-6 (or any corresponding comparable provision of under state, local or non-U.S. Tax Law) as a result foreign law or regulation imposing several liability upon members of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined combined, affiliated or unitary Tax group, ) for any Pre-Closing Tax Period or Pre-Closing Straddle Period. Notwithstanding anything to the contrary herein, (ivthe amount that Olivetti shall be obligated to indemnify Wang under this Section 7.2(a) any with respect to Pre-Closing Straddle Periods shall not exceed the amount by which the sum of the 1998 Operating Loss and the aggregate amount of Taxes, claims or damages with respect to such Pre-Closing Straddle Periods exceeds 65,000,000,000 Italian lira. For purposes of this Article VII, Taxes for which with respect to a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, Pre-Closing Straddle Period shall be considered accrued on the Closing Balance Sheet only to the extent such Taxes are accrual is specifically designated on the Closing Balance Sheet as attributable to a Pre-Closing Straddle Period.
(b) Subject to Section 10.3(b)(ii), Wang shall indemnify, defend and hold harmless Olivetti and its Affiliates and their respective officers, directors, employees and agents (collectively, the operation "Olivetti Tax Indemnified Parties") from and against any and all Taxes, claims or damages imposed on, sustained, incurred or suffered by any Olivetti Tax Indemnified Party, directly or indirectly, by reason of the Business or ownership resulting from any and all Taxes imposed upon Olsy, Olsy Japan, 128 137 Olsy Brazil, or any Controlled Subsidiary (other than claims or damages solely arising as a result of the Transferred Assets any Taxes imposed due to a failure by Olivetti or its Affiliates, including, prior to the ClosingClosing Date, Olsy, Olsy Japan, Olsy Brazil and the Controlled Subsidiaries, to fully comply with any applicable law or regulation relating to Taxes) with respect or pursuant to (vi) any taxable period beginning after the Closing Date (such period, a "Post-Closing Period") and (ii) any Straddle Period, but only with respect to the portion of such Straddle Period beginning the day after the Closing Date and in the manner provided in Section 7.2(c) (such portion, a "Post-Closing Straddle Period").
(c) For purposes of calculating the Taxes attributable imposed which relate to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to a Straddle Period and must be included in income in allocated between a Pre-Closing Straddle Period and a Post-Closing Tax Period solely Straddle Period, the Taxes attributable to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Straddle Period (determined in accordance with shall be computed as if such taxable period ended on and included the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after Closing Date and the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed the Post-Closing Straddle Period shall be computed as if such taxable period began on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after day immediately following the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).
Appears in 1 contract
Samples: Stock Purchase Agreement (Olivetti Ing C & Co Spa /Adr/)
Tax Indemnification. (a) From and after the Closing Date, Seller the Diageo Tax Indemnitors shall pay or cause to be paid, and jointly and severally shall indemnify the Purchaser Indemnified Persons against each General Mills Tax Indemnitee and protect, save and hold them each General Mills Tax Xxxemnitee harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against the following Taxes:
(i) Any Tax imposed upon or relating to Diageo or any Taxes imposed on of the Continuing Affiliates for any period, including any such Tax for which any of the Business Entities (or the Transferred Entities with respect to any PreNon-Closing Tax Period Controlled Foreign Entity or Subsidiary thereof) may be liable (including as a result of the Pre-Closing Restructuring), (iiw) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of the Treasury Regulations (or any corresponding similar provision of state, local or non-U.S. Tax Lawforeign law), (x) as a result transferee or successor, (y) by contract or (z) otherwise;
(ii) Any Tax imposed upon or relating to any of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, the Business Entities for any Pre-Closing Period; and
(iii) Any Tax Periodimposed upon, relating to or resulting from (ivx) any Taxes for which a Transferred Entity, Purchaser the Merger or any Affiliate the provisions of Purchaser is liable as a transferee Section 2.13 or successor or by Contract 2.14 hereof (other than Contracts that do not primarily relate to Taxes)except, in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)7.3(b)(ii) below), but excluding (y) any such inclusion that is attributable to actions taken by Purchaser of the Subsidiary Purchases or (z) any restructuring undertaken in contemplation of the Merger or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Subsidiary Purchases.
(b) From and after the Closing Date, Purchaser the General Mills Tax Indemnitors shall pay or cause to be paid, and the Transferred Entities shall, jointly and severallyxxxxxally shall indemnify each Diageo Tax Indemnitee and protect, indemnify the Seller Indemnified Persons save and hold them each Diageo Tax Indemnitee harmless from any Losses arising from, relating to or otherwise in respect of and against the following Taxes:
(i) Any Tax imposed upon or relating to any Taxes imposed on the Transferred Assets, of the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Period; and
(ii) Any Tax Period, except to imposed upon the extent such Taxes are attributable to Pillsbury Stockholder on the Merger that would not have arisen but for a breach by General Mills of any representation of the representations set forth in Section 4.15(k7.2.
(c) or Section 4.15(l) or any inaccuracy Except as otherwise provided in Section 4.15(h) 7.7, payment in full of any amount due to a Tax Indemnitee under this Section 7.3 shall be made to the affected Tax Indemnitee in immediately available funds at least two Business Days before the date payment of the Seller Disclosure Letter (as Taxes to which such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser payment relates is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)due.
Appears in 1 contract
Samples: Merger Agreement (Diageo PLC)
Tax Indemnification. (a) From and after To the extent neither paid (including the payment of estimated Taxes) before the Closing DateDate nor reflected on the Closing Statement of Net Assets, each Seller severally and not jointly shall indemnify the Purchaser Indemnified Persons against Group and defend and hold them it harmless from any and against all Losses arising fromout of or resulting from (A) Excluded Taxes, relating (B) Taxes arising from or in connection with any breach by any Seller of any covenant contained in this Article, and (C) Taxes arising from any breach of any representation or warranty set forth in , Section 4.10(h) or Section 4.14.
(b) Orhan hereby agrees, jointly and severally with the Purchasing Affiliates, and each Purchasing Affiliate, agrees, severally and not jointly, to indemnify the Seller Indemnified Group and defend and hold it harmless from and against all Losses arising out of or otherwise resulting from (A) any and all Taxes imposed on or payable with respect to the Acquired Companies, other than Excluded Taxes, (B) Transfer Taxes required to be borne by any Purchaser pursuant to Section 15.8, and (C) Taxes arising from or in connection with any breach by any Purchaser of any covenant contained in this Article XV.
(c) Any indemnity payment to be made pursuant to this Section 15.1 shall be paid no later than the latest of (i) ten (10) days after the indemnified party makes written demand upon the indemnifying party, (ii) five (5) days prior to the date on which the underlying amount is required to be paid by the indemnified party, and (iii) five (5) days after any dispute about the liability for or amount of such indemnity payment is resolved.
(d) The indemnification provisions in this Section 15.1 shall survive the Closing until 90 days after the expiration of the applicable statute of limitations for the Tax giving rise to the claim for indemnification including any extensions of time for assessment granted to the relevant Tax authorities.
(e) The Closing Statement of Net Assets is to reflect (i) prepaid Property Taxes as an asset and (ii) accrued Property Taxes as a liability. The parties agree that all Property Taxes imposed on or with respect ofto the Purchased Assets or the Acquired Companies will be pro-rated as of the Closing Date and that, except as provided in Section 11.07(bnotwithstanding any other provision of this Agreement, the economic burden of any such Property Tax will be borne by Sellers for all Pre-Closing Tax Periods (including the portion of a Straddle Period through the Closing Date) and by Purchasers for all Post-Closing Tax Periods (including the portion of a Straddle Period after the Closing Date). Accordingly, notwithstanding any other provision of this Agreement, (i) if any Taxes imposed on the Business Seller or the Transferred Entities any of its Affiliates pays (either before or after Closing) any such Property Tax with respect to any Prea Post-Closing Tax Period (including Period, such Purchaser will reimburse the applicable Seller upon demand for the amount of such Property Tax to the extent it is not reflected as a result an asset on the Closing Statement of the Pre-Closing Restructuring), Net Assets; and (ii) if any Taxes that are Retained Liabilities hereunder, Purchaser or any of its Affiliates pays (iiiafter Closing) any Taxes imposed on such Property Tax with respect to a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes such Seller will reimburse the applicable Purchaser upon demand for which a Transferred Entity, Purchaser or any Affiliate the amount of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, such Property Tax to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in it is not reflected as a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed liability on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect Statement of (i) any Taxes imposed on the Transferred Net Assets, the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Tax Period, except to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a).
Appears in 1 contract
Tax Indemnification. (a) From and after the Closing Date, Seller the Diageo Tax Indemnitors shall pay or cause to be paid, and jointly and severally shall indemnify the Purchaser Indemnified Persons against each General Xxxxx Tax Indemnitee and protect, save and hold them each General Xxxxx Tax Indemnitee harmless from any Losses arising from, relating to or otherwise in respect of, except as provided in Section 11.07(b), and against the following Taxes:
(i) Any Tax imposed upon or relating to Diageo or any Taxes imposed on of the Continuing Affiliates for any period, including any such Tax for which any of the Business Entities (or the Transferred Entities with respect to any PreNon-Closing Tax Period Controlled Foreign Entity or Subsidiary thereof) may be liable (including as a result of the Pre-Closing Restructuring), (iiw) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 of the Treasury Regulations (or any corresponding similar provision of state, local or non-U.S. Tax Lawforeign law), (x) as a result transferee or successor, (y) by contract or (z) otherwise; A-44 <PAGE> (ii) Any Tax imposed upon or relating to any of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, the Business Entities for any Pre-Closing Period; and (iii) Any Tax Periodimposed upon, relating to or resulting from (ivx) any Taxes for which a Transferred Entity, Purchaser the Merger or any Affiliate the provisions of Purchaser is liable as a transferee Section 2.13 or successor or by Contract 2.14 hereof (other than Contracts that do not primarily relate to Taxes)except, in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth in Section 8.03(a)7.3(b)(ii) below), but excluding (y) any such inclusion that is attributable to actions taken by Purchaser of the Subsidiary Purchases or (z) any restructuring undertaken in contemplation of the Merger or any of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.Subsidiary Purchases.
(b) From and after the Closing Date, Purchaser the General Xxxxx Tax Indemnitors shall pay or cause to be paid, and the Transferred Entities shall, jointly and severallyseverally shall indemnify each Diageo Tax Indemnitee and protect, indemnify the Seller Indemnified Persons save and hold them each Diageo Tax Indemnitee harmless from any Losses arising from, relating to or otherwise in respect of and against the following Taxes:
(i) Any Tax imposed upon or relating to any Taxes imposed on the Transferred Assets, of the Business or the Transferred Entities (other than, for the avoidance of doubt, as contemplated by Section 11.01(a)(vi)) with respect to any Post-Closing Period; and (ii) Any Tax Period, except to imposed upon the extent such Taxes are attributable to Pillsbury Stockholder on the Merger that would not have arisen but for a breach by General Xxxxx of any representation of the representations set forth in Section 4.15(k7.2.
(c) or Section 4.15(l) or any inaccuracy Except as otherwise provided in Section 4.15(h) 7.7, payment in full of any amount due to a Tax Indemnitee under this Section 7.3 shall be made to the affected Tax Indemnitee in immediately available funds at least two Business Days before the date payment of the Seller Disclosure Letter (as Taxes to which such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser payment relates is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)due.
Appears in 1 contract
Samples: Merger Agreement
Tax Indemnification. (a) From and after Except to the extent any Taxes have been previously paid or deposited by the Company on or prior to the Closing Date, Seller the Sellers shall indemnify and hold the Purchaser Indemnified Persons Buyer and its Affiliates, and the Company and their respective officers, directors, employees, agents, successors and permitted assigns (each a “Buyer Tax Indemnitee”) harmless from and against and hold them harmless from shall reimburse each Buyer Tax Indemnitee for, any Losses and all Taxes or other Adverse Consequences actually incurred, suffered or accrued at any time by any Buyer Tax Indemnitee arising from, relating out of or attributable to or otherwise in respect of, except as provided in Section 11.07(b), (i) any Liability for the Taxes imposed of Company for any period ending on or before the Effective Closing Date and, the portion of any Straddle Period ending on the Business or Effective Closing Date and Taxes attributable to Extraordinary Transactions, (ii) all liabilities of the Transferred Entities with respect to any Pre-Closing Tax Period (including Company as a result of the Preapplicability of Treas. Reg. §1.1502-6 or similar provisions of foreign, state or local Tax law for Taxes of the any other corporation affiliated with the Company on or prior to the Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, Date and (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 breach or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion misrepresentation with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidated, combined or unitary Tax group, for any Pre-Closing Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, respect to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings of a Transferred Entity for a Pre-Closing Tax Period (determined in accordance with the principles set forth representations and warranties contained in Section 8.03(a)), but excluding any such inclusion that is attributable to actions taken by Purchaser or any 4.12 of its Affiliates after the Closing, (vi) any Taxes attributable to any breach or violation of any of Seller’s representations set forth in Section 4.15, (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.this Agreement.
(b) From and after Notwithstanding anything to the Closing Datecontrary herein, Purchaser the indemnification provided in this Section 11.5 shall not be limited by the other provisions of this ARTICLE 11, including the Indemnity Cap and the Transferred Entities shall, jointly Indemnity Basket and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other than, shall survive for the avoidance applicable statute of doubt, as contemplated by Section 11.01(a)(vi)limitations plus ninety (90) days. In the case of Taxes that are payable with respect to any Post-Taxable period that includes (but does not end on) the Effective Closing Tax Date (a “Straddle Period”):
(i) the Parties hereto shall treat the Effective Closing Date as the last day of such period (i.e., except the parties hereto shall “close the books” on such date) and shall elect to the extent such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), do so if permitted by applicable Legal Requirement; and
(ii) the portion of any Taxes taken into account such Tax that is allocable to the portion of the taxable period ending on the Effective Closing Date shall be, (A) in the adjustment described in Section 2.04, (iii) any case of Taxes attributable to any breach based on income or nonperformance receipts determined under the closing of Purchaser’s obligations pursuant to Article VIII, the books method and (ivb) any Transfer in the case of other Taxes, deemed to be the amount of such Taxes for the entire Straddle Period (after giving effect to amounts which Purchaser may be deducted from or offset against such Taxes with respect to such periods under the relevant Tax Legal Requirement) (or in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction the numerator of which is liable under Section 8.01, provided that the number of days in the Straddle Period ending on the Effective Closing Date and the denominator of which is the number of days in the entire Straddle Period. Any credit or refund resulting from an overpayment of Taxes for a Straddle Period shall be prorated based upon the method employed in this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a11.5(b)(ii).
24. Immediately following Section 11.8 of the Agreement the following Section 11.9 is added:
Appears in 1 contract
Tax Indemnification. (ai) From and after the Closing Date, Seller shall The Unitholders hereby indemnify the each Purchaser Indemnified Persons Party against and agree to hold them each Purchaser Indemnified Party harmless from any Losses Covered Tax and any liabilities, costs, expenses (including, without limitation, reasonable expenses of investigation and attorneys’ fees and expenses), losses, damages, assessments, settlements or judgments arising fromout of or incident to (A) the imposition, relating assessment or assertion of any Covered Tax or (B) a disallowance (in whole or in part) of, or reduction in, the aggregate amount of Transaction Tax Deductions (together, a “Tax Loss”).
(ii) Any claim pursuant to or otherwise Section 10.01(l) shall be satisfied solely from the Indemnity Escrow Amount, and no Unitholder shall have any liability in respect of, of any such claim (except to the extent of such Unitholder’s interest or expectancy in the Indemnity Escrow Amount). Except (x) as provided in Section 11.07(b1.09 for payments of a Shortfall Amount by the Representative or Section 12.16 and (y) in the case of willful actions undertaken in bad faith after the date of this Agreement and/or actual fraud, recovery against the Indemnity Escrow Amount pursuant to this Section 10.01(l) and the Escrow Agreement constitutes the Purchaser Indemnified Parties’ sole and exclusive remedy for any and all Tax Losses (it being understood that the aggregate amount of payments to which the Purchaser Indemnified Parties shall be entitled in satisfaction of claims for Tax Losses under this Section 10.01(l) and claims for Losses under Article 8 shall in no event exceed the Cap). Notwithstanding anything to the contrary contained in this Agreement, (i) no Purchaser Indemnified Party shall have any Taxes imposed on the Business or the Transferred Entities right to indemnification hereunder with respect to any Tax Loss or alleged Tax Loss to the extent (A) such matter was taken into account as an item of Final Cash, Final Indebtedness, Final Net Working Capital, Pre-Closing Income Tax Period Amount or Final Transaction Expenses as finally determined pursuant to Section 1.08 or (including as a B) such Tax Loss did not arise out of or result of the Pre-Closing Restructuring), (ii) any Taxes that are Retained Liabilities hereunder, (iii) any Taxes imposed on a Transferred Entity (including any Taxes imposed under Treasury Regulations Section 1.1502-6 or any corresponding provision of state, local or non-U.S. Tax Law) as a result of its inclusion with Seller, any Subsidiary Transferor or any other Person (other than a Transferred Entity) in a consolidateddisallowance (in whole or in part) of, combined or unitary reduction in, the aggregate amount of Transaction Tax groupDeductions, and would not have been incurred but for the fact that any Pre-Closing Transaction Tax Period, (iv) any Taxes for which a Transferred Entity, Purchaser or any Affiliate of Purchaser is liable as a transferee or successor or by Contract (other than Contracts that do not primarily relate to Taxes), in each case, to the extent such Taxes are attributable to the operation of the Business or ownership of the Transferred Assets prior to the Closing, (v) any Taxes attributable to any “subpart F income” (including any increase thereto under Section 965 of the Code) required to be included in income Deductions were taken into account in a Post-Closing Tax Period solely to the extent such subpart F income is attributable to income or earnings instead of a Transferred Entity for a Pre-Closing Tax Period Period. Without limiting the generality of the foregoing, including without limitation the Cap, indemnification for breach of any representation or warranty with respect to Taxes, including pursuant to the indemnity in Section 10.01(l), shall be limited to Losses with respect to Taxes attributable solely to Pre-Closing Tax Periods except with respect to any breach of Section 4.08(c), 4.08(f), 4.08(k) or 4.08(l).
(determined iii) The Purchaser agrees to give prompt notice to the Representative (on behalf of the Unitholders) of any Tax Loss or the assertion of any claim, or the commencement of any suit, action or proceeding in accordance respect of which indemnity may be sought hereunder that the Purchaser reasonably deems to be within the ambit of this Section 10.01(l) (specifying with reasonable particularity the basis therefor) and will give the Representative such information with respect thereto as the Representative may reasonably request. The Representative may, at its own expense, (A) participate in and (B) with respect to any suits, actions or proceedings (including Tax audits) that relate solely to Pre-Closing Tax Periods, assume the defense of, any such suit, action or proceeding (including any Tax audit); provided that (w) the Representative’s counsel is reasonably satisfactory to the Purchaser, (x) the Purchaser shall have the right to participate in any such action, suit or proceeding at its own expense, (y) the Representative shall thereafter consult with the principles set forth in Section 8.03(a))Purchaser upon the Purchaser’s reasonable request for such consultation from time to time with respect to such suit, but excluding action or proceeding and (z) the Representative shall not, without the Purchaser’s consent, which consent shall not be unreasonably withheld or delayed, agree to any settlement with respect to any Tax if such inclusion that is attributable to actions taken by settlement could adversely affect the Tax liability of the Purchaser or any of its Affiliates after or the Closingstatus of the Company or any of its Subsidiaries as a partnership or disregarded entity. The Purchaser shall have the right (but not the duty) to participate in the defense of any suit, action or proceeding described in the prior sentence and to employ counsel, at its own expense, separate from the counsel employed by the Representative. The Purchaser shall not settle any suit, action or proceeding in respect of which indemnity may be sought hereunder without the consent of the Representative, which consent shall not be unreasonably withheld or delayed. Whether or not the Representative chooses to defend or prosecute any claim, all of the parties hereto shall cooperate in the defense or prosecution thereof. For the avoidance of doubt, the provisions of Section 10.01(e), and not this paragraph, shall control with respect to any Flow-Through Tax Contest.
(iv) No claim shall be maintained under this Section 10.01(l) with respect to any Tax resulting from a claim or demand the defense of which the Representative (on behalf of the Unitholders) was not offered the opportunity to assume as provided under Section 10.01(l)(ii) to the extent the Unitholders’ liability under this Section is adversely affected as a result thereof.
(v) Any claim of any Purchaser Indemnified Party under this Section 10.01(l) may be made and enforced by the Purchaser on behalf of such Purchaser Indemnified Party. The Representative shall act on behalf of all Unitholders in the case of any claim with respect to which a Purchaser Indemnified Party is seeking indemnification from the Unitholders under Section 10.01(l) (with each Unitholder responsible for its portion of the Representative’s costs and expenses in undertaking such representation (determined on a pro rata basis according to each such Unitholder’s Common Percentage). Any written notice delivered to the Representative under this Section 10.01(l) shall be deemed to have been delivered to all of the Unitholders.
(vi) any Taxes attributable For the avoidance of doubt, a Purchaser Indemnified Party shall be entitled to any breach or violation of any of Seller’s representations set forth in Section 4.15, file a claim under this Agreement and under the Escrow Agreement for indemnification for a Tax Loss when such Tax liability is first reflected on a filed Tax Return (vii) any German Trade Tax imposed on Xxxxx Grundstücksverwaltungsgesellschaft mbH & Co. Vermietungs KG resulting from capital gains or profits triggered by the sale of the limited partner interests by Spectrum Brands Real Estate B.V. or by any special business income (Sonderbetriebseinnahmen) or resulting from supplementary balance sheets (Ergänzungsbilanzen) of Spectrum Brands Real Estate B.V, and (viii) any German business Taxes of Spectrum Brands Real Estate B.V. in the meaning of Section 75 German Tax Code (Abgabenordnung) imposed on Purchaser, an Affiliate of Purchaser or a Transferred Entity that acquires real estate from Spectrum Brands Real Estate B.V.
(b) From and after the Closing Date, Purchaser and the Transferred Entities shall, jointly and severally, indemnify the Seller Indemnified Persons and hold them harmless from any Losses arising from, relating to or otherwise in respect of (i) any Taxes imposed on the Transferred Assets, the Business or the Transferred Entities (other thanincluding, for the avoidance of doubt, as contemplated by Section 11.01(a)(viupon the making of estimated Tax payments)) with respect to any Post-Closing . For example, the Tax Period, except to the extent liability shown on an original Form 1065 or 1120 or similar state income Tax Return of a Purchaser Indemnified Party shall be considered a Tax Loss when such Taxes are attributable to a breach of any representation set forth in Section 4.15(k) or Section 4.15(l) or any inaccuracy in Section 4.15(h) of the Seller Disclosure Letter (as such Section of the Seller Disclosure Letter may be revised pursuant to Section 8.06(c)), (ii) any Taxes taken into account in the adjustment described in Section 2.04, (iii) any Taxes attributable to any breach or nonperformance of Purchaser’s obligations pursuant to Article VIII, and (iv) any Transfer Taxes for which Purchaser Tax Return is liable under Section 8.01, provided that this Section 11.07(b) shall not be construed as limiting any indemnity set forth in clause (v) of Section 11.07(a) and Section 11.07(b)(i) shall not be construed as limiting any indemnity set forth in clause (vii) of Section 11.07(a)filed.
Appears in 1 contract
Samples: Merger Agreement (Campbell Soup Co)
