Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v).
Appears in 3 contracts
Samples: Transaction Agreement, Transaction Agreement (Credit Suisse First Boston Usa Inc), Transaction Agreement (Credit Suisse Group)
Tax Indemnities. (a1) From The Seller Parties shall be liable for and after the Closing Date, the Seller shall indemnify and hold harmless the Purchaser Buyer and each Pershing the Company from and their respective officers, directors, employees and agents harmless against any and all damages, Taxes (except Taxes accrued on the Closing Balance Sheet): and expenses arising out of (i) imposed on any breach of the Seller Parties’ covenants in this Section 9.3, and (ii) any liability for Taxes of the Company for any Pre-Closing Tax Period.
(2) The Buyer shall indemnify and hold harmless the Seller Parties from and against any and all Taxes, and any damages and expenses related thereto, that relate or payable by any Pershing Company with respect are attributable to any taxable period or portion thereof Post-Closing Tax Period, other than those that ends on or before are specifically indemnified by the Closing Date Seller Parties pursuant to paragraph (including, without limitation, any obligation to contribute to f)(1) above.
(3) In the payment case of Taxes determined on a consolidated, combined or unitary basis that are payable with respect to a group of corporations taxable period that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning begins before the Closing Date and ending ends after the Closing Date (“Straddle Taxes”), the portion of any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), Tax that is allocable to the portion of such the period ending on the Closing Date; Date shall be: (iiii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof premium Taxes the amount of such Taxes that ends on or before relate to premiums written as of the Closing Date, including (ii) in the pre-Closing portion case of Taxes imposed on a periodic basis with respect to the assets of the Company, or otherwise measured by the level of any Straddle Period because item (other than premiums), deemed to be the amount of such 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 breach by fraction the Seller numerator of which is the number of calendar days in the period ending on the Closing Date and the denominator of which is the number of calendar days in the entire period irrespective of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality lien or Material Adverse Effect); (iv) imposed because assessment date of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); such Taxes, and (viii) with respect to Taxes imposed on or payable measured by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments income, gross receipts, wages, expenses or other reportable transactions that occurred in a period similar periodic measures (other than premiums) or a portion thereof that ends imposed on sales, assignments or before any other transfers of any property shall be deemed equal to the amount which would be payable if the taxable year ended with the Closing Date because of a breach by the Seller (based on an interim closing of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, books as of the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as close of the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (vClosing Date).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gainsco Inc), Stock Purchase Agreement (Montpelier Re Holdings LTD)
Tax Indemnities. (a) From Parent shall be responsible for and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents Purchasers harmless against all Losses arising out of or arising from any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on Indemnified Tax and (ii) any breach by Parent or payable any of its Affiliates of any covenant by any Pershing Company Parent or its Affiliates set forth in this Article VII; provided, that, with respect to the preceding clause (i), such Losses shall be no more than 48% of the pre-GA Merger Date tax liability of the Companies that gives rise to such Losses; provided, further, that, with respect to the preceding clauses (i) and (ii), such indemnification shall be allocated among the Purchasers based on the number of Securities each Purchaser acquires pursuant to this Agreement. For the avoidance of doubt, nothing in this Section 7.01(a) shall limit or otherwise affect the obligations of Parent to provide indemnification to Master LLC for Taxes to the extent Parent is so obligated pursuant to the GA Merger Agreement.
(b) In the case of Taxes that are payable with respect to a Straddle Period, the portion of any such Tax that is allocable to the portion of the taxable period ending on the GA Merger Date shall be:
(i) in the case of Taxes that are either (x) based upon or portion thereof that ends on related to income or before the Closing Date receipts or (includingy) imposed in connection with any sale or other transfer or assignment of property (real or personal, without limitationtangible or intangible), any obligation to contribute deemed equal to the payment amount which would be payable (after giving effect to amounts which may be deducted from or offset against such Taxes) if the taxable period ended on the date of the GA Merger Date; and
(ii) in the case of Taxes determined imposed on a consolidated, combined or unitary periodic basis with respect to a group the assets of corporations that include the Companies, or otherwise measured by the level of any Pershing Companyitem, and Taxes resulting from any Pershing Company ceasing deemed to be a member the amount of such Taxes for the Seller's affiliated group entire Straddle Period (after giving effect to amounts which may be deducted from or offset against such Taxes) (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such immediately preceding period, a "Straddle Period"), Taxes imposed on any Pershing Company multiplied by a fraction the numerator of which are allocable, pursuant to Section 7.01(b), to is the portion number of such days in the period ending on the date of the Closing Dateand the denominator of which is the number of days in the entire Straddle Period.
(c) Payment by the indemnifying party of any amount due under this Section 7.01 shall be made within ten (10) days following written notice by the indemnified party that payment of such amounts to the appropriate taxing authority is due; (iii) imposed on or payable by provided, that the indemnifying party shall not be required to make any Pershing Company with respect to any taxable period or portion thereof that ends on or payment earlier than two days before the Closing Date, including Taxes to which such indemnification payment relates are due to the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)appropriate taxing authority.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Emdeon Inc.), Securities Purchase Agreement (HLTH Corp)
Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's ’s affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "“Straddle Period"”), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC Company and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's ’s liability with respect to this clause (v).
(b) For purposes of this Agreement, in the case of any Tax imposed on any Pershing Company that is imposed on a periodic basis and is payable for a taxable period that begins before the Closing Date and ends after the Closing Date, the portion of such Taxes which is payable for the portion of such taxable period ending on the Closing Date shall be (i) in the case of any Tax other than a Tax based upon or measured by gross or net income or receipts, the amount of such Tax for the entire taxable period (or, in the case of such Taxes determined on an arrears basis, the amount of such Tax for the immediately preceding period) multiplied by a fraction, the numerator of which is the number of days in the portion of such taxable period ending on the Closing Date and the denominator of which is the number of days in the entire taxable period and (ii) in the case of Taxes that are either based upon or measured by gross or net income or receipts, the amount which would be payable if the relevant taxable period ended on the Closing Date.
(c) Purchaser shall indemnify and hold the Seller and its officers, directors, employees and agents harmless from and against any and all Taxes and other costs that result from (i) the Company being treated as other than a disregarded entity on the Closing Date for any income Tax purpose as a result of any action or failure to act by the Company, Purchaser or any Affiliate of either thereof (but, with respect to the Company, only if such action or failure to act occurs after the Closing) or (ii) with respect to any Straddle Period, Taxes imposed on the Company which are allocable to the portion of such period beginning on the day after the Closing Date.
Appears in 2 contracts
Samples: Transaction Agreement (Credit Suisse Group), Transaction Agreement (Credit Suisse First Boston Usa Inc)
Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify be responsible for, shall pay or cause to be paid, and shall indemnify, defend and hold harmless the Parent, the Purchaser and each Pershing Company the Publishing Subsidiaries against and their respective officersreimburse the Parent, directors, employees the Purchaser and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): Publishing Subsidiaries for (i) any Tax imposed on Viacom or payable by any Pershing Company member of an affiliated group with which Viacom files a consolidated or combined income Tax Return (other than the Publishing Subsidiaries) with respect to any taxable Tax period or portion thereof that ends on or before the Closing Date (includingor includes the Closing Date, without limitation, including any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include such Tax for which any Pershing Company, and Taxes resulting from any Pershing Company ceasing to Publishing Subsidiary may be a member liable under Section 1.1502-6 of the Seller's affiliated group for US federal income Tax purposesTreasury Regulations (or any similar provision of state, local or foreign law); , (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes Tax imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company Publishing Subsidiaries with respect to any taxable Tax period or portion thereof that ends on or before the Closing Date, including in excess of the pre-Closing portion amount, if any, for Taxes in Section 3.06 of the Disclosure Schedule; (iii) any Straddle Period because Tax arising from a breach of a breach by the Seller of the representations and warranties representation or warranty set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect)3.14 of this Agreement; (iv) imposed because of a breach by any Section 338 Tax; (v) any Tax arising from the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect)Permitted Reorganization; and (vvi) imposed on or payable by any Pershing Company obligation to pay an amount under the Tax Benefit Agreement among Xxxxxxxx-Xxxx, Inc., Macmillan, Inc., and the Realization Trust dated as of February 28, 1994 with respect to payments the use of Pre-Closing Date NOL in any period ending on or before the Closing Date; PROVIDED, HOWEVER, that no indemnity shall be provided under this Agreement for any Tax resulting from any transaction of the Publishing Subsidiaries occurring on the Closing Date but after the Closing that is not contemplated by this Agreement or is not in the ordinary course of business.
(b) From and after the Closing Date, the Parent, the Purchaser and the Publishing Subsidiaries shall, jointly and severally, be responsible for, shall pay or cause to be paid, and shall indemnify, defend and hold harmless the Seller and its Affiliates against and reimburse the Seller and its Affiliates for all Taxes that the Seller and its Affiliates may at any time suffer or incur, or become subject to, as a result or in connection with the Publishing Subsidiaries that are not subject to indemnification pursuant to paragraph (a) of this Section 7.01, including, but not limited to, Taxes resulting from any transaction of the Publishing Subsidiaries occurring on the Closing Date but after the Closing that is not contemplated by this Agreement or is not in the ordinary course of business.
(c) Payment by the indemnitor of any amount due to the indemnitee under this Section 7.01 shall be made within 10 days following written notice by the indemnitee that payment of such amounts to the appropriate Tax authority is due by the indemnitee, provided that the indemnitor shall not be required to make any payment earlier than two days before it is due to the appropriate Tax authority. If the Seller receives an assessment or information reporting obligations arising other notice of Tax due with respect to the Publishing Subsidiaries for any payments or other reportable transactions that occurred in a period or a portion thereof that ends ending on or before the Closing Date for which the Seller is not responsible, in whole or in part, pursuant to Section
(a) because all or a part of such Tax does not exceed the amount for Taxes in Section 3.06 of the Disclosure Schedule, and the Seller or any of its Affiliates pay such Tax, then the Parent, the Purchaser or a Publishing Subsidiary shall pay to the Seller, in accordance with the first sentence of this Section 7.01(c), the amount of such Tax for which the Seller is not responsible. In the case of a breach by Tax that is contested in accordance with the Seller provisions of Section 7.03, payment of the representations Tax to the appropriate Tax authority will not be considered to be due earlier than the date a final determination to such effect is made by such Tax authority or a court.
(d) For purposes of this Agreement, in the case of any Tax that is imposed on a periodic basis and warranties set forth is payable for a period that begins before the Closing Date and ends after the Closing Date, the portion of such Taxes payable for the period ending on the Closing Date shall be (i) in Section 3.20(e) (without giving effect to the case of any qualifier regarding materiality Tax other than a Tax based upon or Material Adverse Effect)measured by income, providedthe amount of such Tax for the entire period multiplied by a fraction, howeverthe numerator of which is the number of days in the period ending on the Closing Date and the denominator of which is the number of days in the entire period; PROVIDED, HOWEVER, that Purchaser(x) if any property, asset or other right of a Publishing Subsidiary is sold or otherwise transferred prior to the Closing Date, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the pre-Closing period, and (y) if any property, asset or other right of a Publishing Subsidiary is purchased or otherwise acquired after the Closing Date, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the post-Closing period, and (ii) in the case of any Tax based upon or measured by income, the LLC amount which would be payable if the taxable year ended as of the close of the Closing Date; PROVIDED, HOWEVER, that any Tax resulting from the departure of a Publishing Subsidiary from an affiliated, combined or consolidated group in which it was a member in a pre-Closing period (resulting from the triggering into income of deferred intercompany transactions under Section 1.1502-13 of the Treasury regulations or excess loss accounts under Section 1.1502-19 of the Treasury regulations or otherwise) shall be allocated to the pre-Closing period. In the case of any Tax based upon or measured by capital (including net worth or long-term debt) or intangibles, any amount thereof required to be allocated under this Section 7.01(d) shall be computed by reference to the level of such items on the Closing Date; PROVIDED, HOWEVER, that (x) if any property, asset or other right of a Publishing Subsidiary is sold or otherwise transferred prior to the Closing Date, then any such Tax computed by reference to such property, asset or other right shall be attributed entirely to the pre-Closing period, and their respective Affiliates and successors (y) if any property, asset or other right of a Publishing Subsidiary is purchased or otherwise acquired after the Closing Date, then any such Tax computed by reference to such property, asset or other right shall fully cooperate with and take such reasonable actions as be attributed entirely to the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)post-Closing period.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Viacom Inc), Stock Purchase Agreement (Pearson PLC)
Tax Indemnities. (a) From and after Notwithstanding any matter listed on the Closing DateDisclosure Schedule, the Seller shall indemnify and hold the Purchaser Purchaser, the Company and each Pershing of their respective Affiliates harmless against Excluded Taxes and associated expenses. The Company shall be responsible for and shall indemnify and hold the Seller and its Affiliates harmless against all Taxes and associated expenses of or attributable to the Company and their respective officers, directors, employees and agents harmless against any and all Taxes the Subsidiaries other than Excluded Taxes.
(except Taxes accrued on b) In the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment case of Taxes determined on a consolidated, combined or unitary basis that are payable with respect to a group Straddle Period, the portion of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), Tax that is allocable to the portion of such the taxable period ending on the Closing Date shall be:
(i) in the case of Taxes that are either (x) based upon or related to income or receipts or (y) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible) (other than Conveyance Taxes), deemed equal to the amount which would be payable (after giving effect to amounts which may be deducted from or offset against such Taxes) if the taxable period ended on the Closing Date; and
(iiiii) in the case of Taxes imposed on or payable by any Pershing Company a periodic basis with respect to the assets of the Company, or any taxable Subsidiary or any Non-Company Owned Assets, or otherwise measured by the level of any item, deemed to be the amount of such Taxes for the entire Straddle Period (after giving effect to amounts which may be deducted from or offset against such Taxes) (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 days in the period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period.
(c) Any credit or portion refund resulting from an overpayment of Taxes for a Straddle Period shall be prorated based upon the method employed in this paragraph (b) taking into account the type of Tax to which the refund relates. In the case of any Tax based upon or measured by capital (including net worth or long-term debt) or intangibles, any amount thereof that ends required to be allocated under this Section 6.01(c) shall be computed by reference to the level of such items on or before the Closing Date, including .
(d) Payment by the pre-Closing portion indemnifying party of any Straddle Period because amount due under this Section 6.01 shall be made within 10 days following written notice by the indemnified party that payment of such amounts to the appropriate taxing authority is due, provided that the indemnifying party shall not be required to make any payment earlier than two days before it is due to the appropriate taxing authority. In the case of a breach Tax that is contested in accordance with the provisions of Section 6.03, payment of the Tax to the appropriate taxing authority will be considered to be due no earlier than the date a final determination to such effect is made by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality appropriate taxing authority or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)court.
Appears in 2 contracts
Samples: Restructuring and Investment Agreement (Stock Building Supply Holdings, Inc.), Restructuring and Investment Agreement (Stock Building Supply Holdings, Inc.)
Tax Indemnities. (a) From and after the Closing DateThe Seller will indemnify, the Seller shall indemnify defend and hold harmless the Purchaser Buyer Parent and each Pershing Company the Buyer Sub and any parent, Subsidiary, associate, Affiliate, director, officer, employee, shareholder or agent of any of such parties, and their respective officersrepresentatives, directorssuccessors and assigns (in each case other than the Seller, employees any Seller Stockholder or any beneficiary of any Seller Stockholder that is a trust, solely in their capacity as such) (each, a “Tax Indemnitee”) from and agents harmless against against, and will reimburse each Tax Indemnitee for, any and all Taxes (including reasonable attorneys’ fees and expenses in connection with any action, suit or Proceeding relating to liabilities for Taxes) arising out of or attributable to:
(i) any misrepresentation, inaccuracy or breach of any representation, warranty, covenant, agreement or promise related to Taxes made by the Seller or the Seller Stockholders contained in this Agreement;
(ii) any and all Taxes of the Seller or any of its Subsidiaries or for which the Seller or any of its Subsidiaries may be liable for any Taxable Period (including any Tax liability arising as a result of (A) a failure by the Seller or any of its Subsidiaries to properly withhold or remit the Seller’s or any Seller Stockholder’s allocable share of any income or sales Tax, (B) any Tax liability of any Seller Stockholder for which the Seller is liable under any applicable Law, and (C) the failure of the Seller or any of its Subsidiaries or any Seller Stockholder to comply with any withholding or reporting obligations), or portion thereof, ending on or before the Effective Time, except to the extent that such Taxes are specifically set forth in the Tax Reserve (if any) accrued on the Closing Balance Sheet): most recent Interim Financial Statements or accrued as a current liability and taken into account in determining Working Capital;
(iiii) any and all Taxes allocated to the Seller pursuant to Section 8.1(b), except to the extent that such Taxes are specifically set forth in the Tax Reserve (if any) accrued on the most recent Interim Financial Statements or accrued as a current liability and taken into account in determining Working Capital; and
(iv) any and all Taxes imposed on or through the Seller Stockholders or their beneficiaries.
(b) Except as provided in Section 8.2, the portion of any Tax payable by any Pershing Company with respect to any taxable period or portion thereof Taxable Period that ends begins on or before before, and ends after, the Closing Date (includinga “Straddle Period” and a “Straddle Period Tax”), without limitation, any obligation to contribute allocable to the payment portion of the Straddle Period ending on the Closing Date will be:
(i) in the case of Taxes determined that are either (A) based upon or related to income or receipts or (B) imposed in connection with any actual or deemed sale or other transfer or assignment of property (real or personal, tangible or intangible), deemed equal to the amount that would be payable (after giving effect to amounts that may be deducted from or offset against the Taxes) if the Taxable Period ended on the Closing Date, and the Parties will elect to do so if permitted by applicable Laws; and
(ii) in the case of Taxes imposed on a consolidated, combined or unitary periodic basis with respect to a group the Company Assets or the assets of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member Affiliate of the Seller's affiliated group , or otherwise measured by the level of any item, deemed to be the amount of such Taxes for US federal income Tax purposesthe entire Straddle Period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period); (ii) with respect to taxable periods beginning before , 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 ending after the Closing Date (any such period, a "denominator of which is the number of days in the entire Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Avon Products Inc)
Tax Indemnities. (a) From Seller shall be liable for and shall pay, reimburse, indemnify, defend and hold harmless Buyer Indemnitees for, from and against (without duplication) any:
(i) Taxes imposed on any Transferred Company for any Pre-Closing Tax Period, or for which any Transferred Company may be liable as a transferee, successor in interest, by Contract, under applicable Law or otherwise for any Pre-Closing Tax Period;
(ii) Taxes imposed on any Transferred Company, or for which any Transferred Company may be liable, under any Tax Contract entered into on or prior to the Closing Date;
(iii) Taxes imposed on any Transferred Company, or for which any Transferred Company may be liable pursuant to Treasury Regulations Section 1.1502-6 or any similar provision of state, local or foreign Law, as a result of any Transferred Company having been included in a combined, consolidated, affiliated, unified or group Tax Return for any Pre-Closing Tax Period or having had its Tax liability calculated on a combined, consolidated, unified, group or affiliated basis for any Pre-Closing Tax Period;
(iv) Taxes relating to, resulting from or arising out of any Loss Overstatement, any Loss Limitation or any Tax Asset Overstatement, in each case, calculated as provided in subsection (c)(i) below, plus the amount of any interest, penalty, fine or addition to Taxes arising from or imposed as a result of any such Loss Overstatement, Loss Limitation or Tax Asset Overstatement;
(v) Taxes relating to, resulting from or arising out of (A) any SRLY Limitation (including those imposed as a result of the application of Section 382 of the Code) that would not have been imposed but for the existence of such SRLY Limitation immediately prior to the Closing or (B) any Loss Expiration, in each case calculated as provided in subsection (c)(ii) below;
(vi) Taxes relating to, resulting from or arising out of (A) any of the Transferred Companies being required to include any item of income or gain in, or exclude any item of loss or deduction from, the determination of taxable income for any Post-Closing Tax Period as a result of any (1) change in method of accounting for a Pre-Closing Tax Period under Section 481 of the Code (or any corresponding provision of state, local or foreign Law), (2) installment sale or open transaction made or entered into on or prior to the Closing Date, (3) prepaid amount received on or prior to the Closing Date or (4) intercompany transaction that will be required to be taken into account under Treasury Regulations Section 1.1502-13 (or any predecessor provision or any similar provision of state, local or foreign Law) and that occurs on or prior to the Closing Date or (B) any of the Transferred Companies having made an election under Section 108(i) of the Code to defer the recognition of any cancellation of indebtedness income;
(vii) Taxes relating to, resulting from or arising out of any breach or nonperformance of any covenant by Seller set forth in this Agreement to the extent relating to Taxes or Tax matters;
(viii) Taxes relating to, resulting from or arising out of (A) the Restructuring, (B) any other transaction occurring on or prior to the Closing Date pursuant to or as contemplated by this Agreement or any Ancillary Agreement, (C) any transaction occurring pursuant to or as contemplated by Sections 4.10, 4.14, 4.17 and 4.22(b) of this Agreement (including any such transaction occurring after the Closing Date, ) and (D) any Liabilities under the agreements that are required to be terminated pursuant to Section 5.7(b);
(ix) Transfer Taxes allocable to Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all pursuant to Section 5.6;
(x) Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company Buyer Indemnitee with respect to any taxable period Taxes required to be deducted or portion thereof that ends on withheld from any amount paid or before the Closing Date payable (including, without limitation, or treated for Tax purposes as paid or payable) by any obligation Buyer Indemnitee pursuant to contribute this Agreement or any Ancillary Agreement to the payment of extent such Taxes determined on a consolidated, combined are not deducted or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); withheld;
(iixi) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Non-U.S. Indemnifiable Taxes imposed on any Pershing Company which are allocable, amount paid or payable (or treated for Tax purposes as paid or payable) to any Buyer Indemnitee pursuant to Section 7.01(b), to the portion of such period ending on the Closing Dateor as contemplated by this Agreement or any Ancillary Agreement; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaserany payment described in Section 8.5(b) shall be subject to the provisions of Section 8.5(b) rather than to this Section 5.1(a)(xi);
(xii) Taxes of GHI or any of its Subsidiaries or any of its or their respective properties, business, operations, Contracts, assets or liabilities; and
(xiii) reasonable out of pocket costs, expenses, fees and other amounts incurred in contesting, determining, investigating, or settling any matter for which a claim for indemnity may be made pursuant to the foregoing (including attorneys’ and accountants’ fees); provided, however, that Seller shall not be liable for Taxes that are specifically set forth on the Closing Balance Sheet as a Tax liability to the extent taken into account in determining the Closing Date Tangible Book Value, determined on an item by item or asset by asset basis (any such Tax described in this proviso, an “Excluded Tax”); and provided, further, that any payments made by Seller to Buyer pursuant to Section 5.3(b) shall not be duplicated by this Section 5.1(a).
(b) Buyer shall be liable for and shall pay, reimburse, indemnify, defend and hold harmless Seller Indemnitees for, from and against (without duplication):
(i) Taxes imposed on any Transferred Company for any Post-Closing Tax Period, or for which any Transferred Company may be liable for any Post-Closing Tax Period, in each case excluding Taxes described in Section 5.1(a);
(ii) Taxes relating to, resulting from or arising as a result of any breach or nonperformance of any covenant by Buyer set forth in this Agreement to the extent relating to Taxes or Tax matters;
(iii) Transfer Taxes allocable to Buyer pursuant to Section 5.6; and
(iv) reasonable out of pocket costs, expenses, fees and other amounts incurred in contesting, determining, investigating, or settling any matter for which a claim for indemnity may be made pursuant to the foregoing (including attorneys’ and accountants’ fees).
(c) For purposes of Section 5.1(a)(iv):
(i) Taxes relating to, resulting from or arising out of any Loss Overstatement, any Loss Limitation or any Tax Asset Overstatement shall be calculated on a hypothetical basis as follows: (A) in the case of a Loss Overstatement, 35% times that Loss Overstatement; (B) in the case of a Loss Limitation, 35% times (1) the Minimum WMI Losses or Minimum AFI Losses, as applicable, minus (2) the amount of net operating losses and net operating loss carryforwards of the WMI Consolidated Group or the AFI Consolidated Group, as applicable, that are usable under the applicable limitation in the first Taxable Period following the Closing; (C) in the case of a Tax Asset Overstatement, 35% times that Tax Asset Overstatement; and (D) in each case, reduced by the present value of any Tax amortization, depreciation or other deduction that arises after the Closing Date relating to, resulting from or arising out of the same facts that led to such Loss Overstatement, Loss Limitation or Tax Asset Overstatement. For purposes of this calculation, it shall be assumed that (w) the applicable Tax rate is 35%, (x) the present value of any Tax deduction is based on the Discount Rate, (y) each Tax deduction is used in the first Taxable Period in which it can be claimed and (z) an increase in basis that does not give rise to an Tax amortization or depreciation deduction shall not be considered a Tax deduction for purposes of clause (D) of the preceding sentence.
(ii) Taxes relating to, resulting from or arising out of any Loss Expiration or SRLY Limitation shall be the actual increase in the cash Taxes payable for any Taxable Period as a result of the Loss Expiration or SRLY Limitation, as applicable, over the cash Taxes that would have been payable for such Taxable Period had there been no such SRLY Limitation or Loss Expiration, as applicable (such increase, the LLC and their respective Affiliates and successors “Tax Increase”); provided, however, that if in any subsequent Taxable Period there is an actual reduction in cash Taxes payable for such subsequent Taxable Period compared to the cash Taxes that would have been payable for such subsequent Taxable Period had there been no such SRLY Limitation (such reduction, the “Tax Reduction”), then the party experiencing such Tax Reduction (the “Benefited Party”) shall fully cooperate with and take pay to the party that previously indemnified such reasonable actions as Benefited Party for a prior Tax Increase the Seller may reasonably request or as are otherwise reasonably necessary amount of such Tax Reduction; provided, further, however, that the aggregate amount paid by the Benefited Party to mitigate the Seller's liability other party under this Section 5.1(c)(ii) with respect to this clause (v)any Tax Reduction shall never exceed the aggregate amount received by such Benefited Party with respect to prior Tax Increases.
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Samples: Stock Purchase Agreement (Allstate Corp), Stock Purchase Agreement (White Mountains Insurance Group LTD)
Tax Indemnities. (a) From and after the Closing Dateand subject to the limitations set forth in this Article VII, the Seller shall indemnify and hold covenants with the Purchaser and each Pershing Company and their respective officersthat the Seller will pay to the Purchaser, directorsto the extent possible by way of repayment of the Base Purchase Price (but not so as to limit the amount payable where not wholly possible), employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): an amount equal to:
(i) any Excluded Taxes becoming due on or after the Closing; and
(ii) any reasonable out-of-pocket costs or expenses incurred by the Purchaser or the Company in connection with a Tax liability referred to in the preceding subparagraphs or in connection with any action taken in avoiding, resisting or settling any such liability; and
(iii) the extent to which the Closing Date PIS/COFINS Tax Credits of the Company are less than the Tax Benefit Threshold Amount (it being understood that any inability of Purchaser or its Affiliates to recognize, utilize or monetize such Closing Date PIS/COFINS Tax Credits following the Closing Date for any reason other than the failure of such Closing Date PIS/COFINS Tax Credits to exist or the invalidity thereof shall not be a basis for indemnification).
(b) The covenant to pay contained in Section 7.01(a) does not apply to the extent that it relates to:
(i) any Taxes imposed on the Company for any Post-Closing Period,
(ii) any Taxes imposed on the Company which arise from any action or transaction taken by the Purchaser or any of its Affiliates occurring on or after the Closing Date after the Closing other than an act or transaction which is in the ordinary course of business as carried on by the Company at the Closing, the Company was legally committed to do, or omit to do, under a commitment that existed on or before Closing or an act or transaction that could not reasonably have been avoided;
(iii) any Taxes arising out of or resulting from any breach of any covenant or agreement of the Purchaser contained in this Agreement; or
(iv) Conveyance Taxes for which the Purchaser is responsible, as provided under Section 7.06.
(c) In the case of Taxes that are payable by any Pershing Company with respect to a Straddle Period, the portion of any such Tax that is allocable to the Pre-Closing Period shall be:
(i) in the case of Taxes that are either (x) based upon or related to income or receipts or (y) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible), deemed equal to the amount which would be payable (after giving effect to amounts which may be deducted from or offset against such Taxes) if the taxable period or portion thereof ended on the date of the Closing; provided that ends all amounts paid to a Transferred Employee pursuant to an outstanding equity award on or before the Closing Date (including, without limitation, any obligation to contribute shall be allocable to the payment Pre-Closing Period to the extent permitted by applicable Law; and
(ii) in the case of Taxes determined imposed on a consolidated, combined or unitary periodic basis with respect to a group the assets of corporations that include the taxpayer, or otherwise measured by the level of any Pershing Companyitem, and Taxes resulting from any Pershing Company ceasing deemed to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion amount of such period ending on Taxes for the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any entire Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without after giving effect to amounts which may be deducted from or offset against such Taxes) (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 days in the Pre-Closing Period 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 paragraph (b) taking into account the type of Tax to which the refund relates. In the case of any qualifier regarding materiality Tax based upon or Material Adverse Effect); measured by capital (ivincluding net worth or long-term debt) imposed because or intangibles, any amount thereof required to be allocated under this Section 7.01(b) shall be computed by reference to the level of a breach by such items on the Seller date of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving Closing. All determinations necessary to effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments the foregoing allocations shall be made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller manner consistent with prior practice of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)Company.
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Tax Indemnities. (a) From and after the Closing Date, the The Seller shall indemnify and hold the Purchaser and each Pershing Buyer, the Company and their respective officersSubsidiaries harmless from any loss or liability that Buyer, directorsthe Company or the Subsidiaries suffer arising out of any liability (primary or secondary) for Taxes of any of the Company or Subsidiaries attributable to periods through and including the date of the Closing. The Seller shall also indemnify and hold the Buyer, employees the Company and agents Subsidiaries harmless against all liability for Taxes of any and all Taxes (except Taxes accrued on affiliated or connected group of which the Closing Balance Sheet): (i) imposed on Company or payable by the Subsidiaries were members at any Pershing Company with respect time prior to any taxable period or portion thereof that ends on or before the Closing Date imposed on the Company or Subsidiaries by Section 1.1502-6 of the Treasury Regulations or any state, local or foreign law, by contract or otherwise (including, without limitation, any obligation other than Taxes of the Company or the Subsidiaries for periods after the Closing Date). The Buyer shall indemnify and hold the Seller harmless from all deficiencies in Tax of the Company or Subsidiaries attributable to contribute to all periods or portions thereof beginning on or after the payment day after the date of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, the Closing and for all Taxes resulting from any Pershing Company ceasing to be a member action taken outside the ordinary course of business without the Seller's affiliated group for US federal income Tax purposeswritten consent by the Buyer, the Company or Subsidiaries on the Closing Date after the Closing (unless contemplated by this Agreement); . For purposes of this Section 4.9, the Taxes attributable to the period through the Date of the Closing and to the period beginning on the following day shall be determined (i) as if those periods were separate taxable years, and (ii) with respect to taxable periods beginning before except as otherwise required by law, by using the Closing Date Tax accounting methods and ending after Tax elections used by the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or relevant Subsidiaries before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v).
Appears in 1 contract
Samples: Stock Purchase Agreement (Renaissance Worldwide Inc)
Tax Indemnities. (a) Seller shall indemnify Buyer and hold it harmless from and against any liability for Taxes (i) imposed on the Company in respect of its income, business or operations for any period prior to the Closing Date (a "Pre-Closing Period"), (ii) imposed on the Company pursuant to Section 1.1502-6 of the Treasury Regulations promulgated under the Code (or pursuant to any analogous provision of state or local law) as a result of the affiliation of any company with the Company during a Pre-Closing Period or (iii) attributable to any change in accounting method employed by the Company prior to the Closing Date (but only to the extent that the amount of such Taxes is in excess of the amount accrued for Taxes in the books and records of the Company as of the Closing Date); provided, however, that no indemnity shall be provided under this Article VI for (x) any Taxes resulting from a breach by Buyer of its representations, warranties and obligations under this Agreement, (y) Taxes attributable to, or arising as a result of, any transactions contemplated by this Agreement or (z) any liability for Taxes resulting from elections under Section 338 of the Code with respect to the Company (or any comparable elections under the state or local Tax laws). Indemnity payments under this Article VI shall be made on an After-Tax Basis.
(b) From and after the Closing DateDate (a "Post Closing Period"), the Seller Buyer shall indemnify Seller and hold the Purchaser it harmless from and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Taxes (except Taxes accrued imposed on the Closing Balance Sheet): Company that are not subject to indemnification pursuant to Section 6.1(a) or Article VII.
(ic) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date Any Taxes (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member other than U.S. federal income taxes) of the Seller's affiliated group Company not otherwise indemnified under this Article VI for US federal income Tax purposes); (ii) with respect to taxable periods a period beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period") shall be apportioned between Seller and Buyer, in the case of real and personal property taxes and franchise taxes not based on gross or net income or capital (including net worth or long-term debt) or gross or net assets, on a per diem basis and, in the case of other Taxes (including sale and transfer Taxes), Taxes imposed shall be determined based on any Pershing the actual activities and operations of the Company which are allocable, pursuant to Section 7.01(b), to during the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the preis a Pre-Closing Period and the portion of such period that is a Post-Closing Period. Notwithstanding the foregoing, in the case of any Straddle Period because of a breach Tax based upon or measured by the Seller of the representations and warranties set forth in Section 3.20(a) capital (in each case without giving effect to any qualifier regarding materiality including net worth or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(dlong-term debt) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality gross or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v).net
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Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v).
(b) For purposes of this Agreement, in the case of any Tax imposed on any Pershing Company that is imposed on a periodic basis and is payable for a taxable period that begins before the Closing Date and ends after the Closing Date, the portion of such Taxes which is payable for the portion of such taxable period ending on the Closing Date shall be (i) in the case of any Tax other than a Tax based upon or measured by gross or net income or receipts, the amount of such Tax for the entire taxable period (or, in the case of such Taxes determined on an arrears basis, the amount of such Tax for the immediately preceding period) multiplied by a fraction, the numerator of which is the number of days in the portion of such taxable period ending on the Closing Date and the denominator of which is the number of days in the entire taxable period and (ii) in the case of Taxes that are either based upon or measured by gross or net income or receipts, the amount which would be payable if the relevant taxable period ended on the Closing Date.
(c) Purchaser shall indemnify and hold the Seller and its officers, directors, employees and agents harmless from and against any and all Taxes and other costs that result from (i) the LLC being treated as other than a disregarded entity on the Closing Date for any income Tax purpose as a result of any action or failure to act by the LLC, Purchaser or any Affiliate of either thereof (but, with respect to the LLC, only if such action or failure to act occurs after the Closing) or (ii) with respect to any Straddle Period, Taxes imposed on the LLC which are allocable to the portion of such period beginning on the day after the Closing Date.
Appears in 1 contract
Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify Purchaser and its Affiliates, without gross-up for Taxes, against and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents them harmless against any and from all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on Seller, the Seller Retained Subsidiaries or payable by any Pershing Company Affiliate with which Seller files a consolidated or combined income tax return (other than A. B. Dick or any Purchaser Retained Subsidiary) with respect to any taxable period that ends on, before or portion thereof after the Closing Date, (ii) imposed on A. B. Dick or any of the Purchaser Retained Subsidiaries with respect to any taxable period that ends on or before the Closing Date Date, and, in the case of any taxable period beginning before (including, without limitationbut not ending on or before) the Closing Date, any obligation to contribute to the payment Taxes of Taxes determined on a consolidated, combined A. B. Dick or unitary basis with respect to a group of corporations any Purchaser Retained Subsidiary that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b6.01(d), to the portion of such period ending on the Closing Date; , (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of as a breach by the Seller result of the representations and warranties set forth Section 338 Elections (as defined in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect6.05(a); ), (iv) imposed because of as a breach by the Seller result of the representations and warranties set forth in liquidating distributions made by A. B. Dick pursuant to Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); 5.04 of this Agreement, and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because UK Subsidiary under Section 179 Taxation of a breach by Chargeable Gains Act 0000 xx the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), United Kingdom; provided, however, that PurchaserSeller shall have no obligation to make any payment pursuant to this Section 6.01 until the aggregate amount of claims arising pursuant hereto exceeds the Tax Basket (defined below), in which case Purchaser and its Affiliates shall be entitled to indemnity for the LLC amount of such claim in excess of the Tax Basket and all claims made thereafter. From and after the Closing Date, Seller shall indemnify Purchaser and its Affiliates against and hold them harmless from all reasonable costs and expenses (including reasonable attorneys' and consultants' fees) incurred by Purchaser or any of its Affiliates in connection with enforcing their respective Affiliates and successors rights under this Article VI. Estimated Taxes paid by or on behalf of A. B. Dick or any Purchaser Retained Subsidiary on or prior to the Closing Date shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary be credited to mitigate the Seller's liability Taxes with respect to this clause (v)the Pre-Closing Tax Period. "Tax Basket" means the reserve for Taxes included in the calculation of Final Working Capital.
Appears in 1 contract
Tax Indemnities. (a) From and after the Closing Date, the without duplication, Seller and Seagram shall indemnify Buyer and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless Affiliates against any and all Taxes (except Taxes accrued on including reasonable attorneys' and accountants' fees and other reasonable out-of-pocket expenses incurred in connection therewith, but reduced by any Tax benefit that Buyer, the Closing Balance Sheet): (iCompany or their Affiliates realized as a result of the payment of any such Taxes) imposed on or payable by the Company or any Pershing Company of its subsidiaries (i) with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, including any obligation Taxes allocated to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposessuch period under Section 7.1(d) hereof); (ii) with respect to taxable periods beginning under Treasury Regulation 1.1502-6 (or any similar provision of state, local or foreign law) by reason of the Company or any of its subsidiaries being included in any consolidated, affiliated, combined or unitary or other similar group of which J.E. Xxxxxxx Xxxp. is the common parent at any time on or before the Closing Date and ending or (iii) pursuant to any contract or agreement with any third party for indemnification of Taxes. No indemnity shall be provided under this Agreement for any Taxes resulting from any transaction of the Company or any of its subsidiaries occurring after the Closing Date or on the Closing Date after the Closing that is not in the ordinary course of business, provided, however that any Taxes resulting from any transactions contemplated by Section 5.9 shall be subject to the terms of the indemnification provisions set forth in the first sentence of this Section 7.1(a).
(b) From and after the Closing Date, without duplication, Buyer shall, and shall cause the Company to, indemnify Seagram and its Affiliates against all Taxes (including reasonable attorneys' and accountants' fees and other reasonable out-of-pocket expenses incurred in connection therewith but reduced by any Tax benefit that Seller, Seagram or any of their affiliates realized as a result of the payment of any such period, a "Straddle Period"), Taxes Taxes) imposed on any Pershing the Company and its subsidiaries, which Taxes are allocable, not subject to indemnification pursuant to Section 7.01(b7.1(a), to including, but not limited to, Taxes (i) resulting from any transaction of the portion of such period ending Company and its subsidiaries occurring after the Closing Date or on the Closing Date; Date after the Closing that is not in the ordinary course of business or (iiiii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that begins after the Closing Date (including any Taxes allocated to such period under Section 7.1(d) hereof).
(c) Payment by the indemnitor of any amount due under this Section 7.1 shall be made within ten days following written notice by the indemnitee that payment of such amounts to the appropriate Tax Authority is due, provided that the indemnitor shall not be required to make any payment earlier than two days before it is due to the appropriate Tax Authority. If Seller receives an assessment or other notice of Taxes due with respect to the Company or any of its subsidiaries for any period for which Seller is not responsible, in whole or in part, pursuant to Section 7.1(a), then Buyer shall pay such Tax, or if Seller pays such Tax, then Buyer or the Company shall pay to Seller, in accordance with the first sentence of this Section 32 27 7.1(c), the amount of such Tax for which Seller is not responsible. In the case of a Tax that is contested in accordance with the provisions of Section 7.3, payment of the Tax to the appropriate Tax Authority will not be considered to be due earlier than the date a final determination to such effect is made by the appropriate Taxing Authority or court. Final determination shall have the meaning as set forth in Section 1313(a) of the Code.
(d) Seller and Buyer shall, to the extent permitted by applicable law and except as otherwise provided herein, elect with the relevant Taxing Authority to close the taxable period of the Company and its subsidiaries at the end of the day on the Closing Date. For purposes of this Agreement, in the case of any Tax that is imposed on a periodic basis and is payable for a taxable period that begins before the Closing Date and ends on or before after the Closing Date, including the pre-Closing portion of any Straddle Period because such Taxes which is payable for the portion of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed such taxable period ending on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because shall be (i) in the case of any Tax other than a Tax based upon or measured by income or receipts, the amount of such Tax for the entire taxable period (or, in the case of such Taxes determined on an arrears basis, the amount of such Tax for the immediately preceding period) multiplied by a fraction, the numerator of which is the number of days in the portion of such taxable period ending on the Closing Date and the denominator of which is the number of days in the entire taxable period and (ii) in the case of a breach Tax based upon or measured by income or receipts, the Seller amount which would be payable if the relevant taxable period ended on the Closing Date. Any credit or refund resulting from an overpayment of Taxes shall be prorated based upon the method employed in the immediately preceding sentence. In the case of any Tax based upon or measured by capital (including net worth or long-term debt) or intangibles, any amount thereof required to be allocated under this Section 7.1(d) shall be computed by reference to the level of such items on the Closing Date. The taxable period of any partnership or other pass-through entity in which the Company or any subsidiary is a partner or other beneficial interest holder shall be deemed to terminate on the Closing Date. All determinations necessary to effect the foregoing allocations shall be made in a manner consistent with prior practice of the representations Company and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)its subsidiaries.
Appears in 1 contract
Tax Indemnities. (a) From and after the Closing Date, ---------------- without duplication, the Seller shall indemnify the Buyers and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless Spirits Subsidiaries against any and (i) all Income Taxes (except Taxes accrued including reasonable attorneys' and accountants' fees and other reasonable out-of-pocket expenses incurred in connection therewith, and determined on the Closing Balance Sheet): (ia tax-affected basis, as calculated under Section 10.6(a)) imposed on or payable by any Pershing Company of the Asset Sale Subsidiaries or the Spirits Subsidiaries (A) with respect to any taxable period or portion thereof that ends on or before the Closing Date (includingincluding any Income Taxes allocated to such period under Section 7.1(d) hereof), without limitation(B) under Treasury Regulation 1.1502-6 (or any similar provision of state, local or foreign law) by reason of any obligation to contribute to of the payment of Taxes determined on a Spirits Subsidiaries being included in any consolidated, affiliated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated or other similar group for US federal income Tax purposes); (ii) tax purposes with respect to taxable periods beginning the Seller or its Affiliates at any time on or before the Closing Date and ending after the Closing Date Date, (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, C) pursuant to Section 7.01(b), any contract or agreement with any third party for indemnification of Income Taxes entered into by any Spirits Subsidiary prior to the portion of such period ending on the Closing Date; , and (iiiD) imposed on or without duplication, (I) any Income Taxes payable by as a result of elections referred to in Section 7.8, (II) any Pershing Company with respect to Income Taxes for any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion Date payable as a result of any Straddle Period because Spirits Subsidiary ceasing to be a member of a breach by consolidated, affiliated, combined or unitary or other similar group for Tax purposes with the Seller of the representations and warranties set forth in Section 3.20(aor its Affiliates, (III) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to Income Taxes for any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a taxable period or a portion thereof that ends on or before the Closing Date because arising from the UK Reorganization, (IV) for clarification, any Income Taxes for any taxable period or portion thereof that ends on or before the Closing Date in respect of matters that are set forth on Schedule 4.18 and (ii) any stamp duty or stamp duty reserve tax payable in relation to the UK Reorganization. No indemnity shall be provided under this Section 7.1(a) for any Income Taxes resulting from any transaction of any of the Spirits Subsidiaries (A) occurring on the Closing Date after the Closing that is not in the ordinary course of business or (B) occurring after the Closing Date.
(b) From and after the Closing Date, without duplication, and the Buyers shall, and shall cause the Spirits Subsidiaries to, indemnify the Seller and its Affiliates against all Taxes (including reasonable attorneys' and accountants' fees and other reasonable out-of-pocket expenses incurred in connection therewith, and determined on a tax-affected basis, as calculated under Section 10.6(a)) imposed on the Spirits Subsidiaries which are not subject to indemnification pursuant to Section 7.1(a), and all Taxes that are Assumed Liabilities, including Taxes (i) resulting from any transaction (A) occurring on the Closing Date after the Closing that is not in the ordinary course of business or (B) occurring after the Closing Date or (ii) with respect to any taxable period or portion thereof that begins after the Closing Date (including any Income Taxes allocated to such period under Section 7.1(d) hereof).
(c) Payment by the indemnitor of any amount due under this Section 7.1 shall be made within ten days following written notice by the indemnitee that payment of such amounts to the appropriate Tax Authority is due; provided that the indemnitor shall not be required to make any payment earlier than five days before it is due to the appropriate Tax Authority. If the Seller receives an assessment or other notice of Taxes due with respect to any of the Spirits Subsidiaries for any period for which the Seller is not responsible, in whole or in part, pursuant to Section 7.1(a), then the Buyers shall pay such Tax, or if the Seller pays such Tax, then the Buyers or the Spirits Subsidiary shall pay to the Seller, in accordance with the first sentence of this Section 7.1(c), the amount of such Tax for which the Seller is not responsible. In the case of a breach Tax that is contested in accordance with the provisions of Section 7.3, payment of the Tax to the appropriate Tax Authority will not be considered to be due for purposes of this Section 7.1(c) earlier than the date a final determination to such effect is made by the Seller of appropriate Tax Authority or court. Final determination shall have the representations and warranties meaning set forth in Section 3.20(e1313(a) of the Code (without giving or comparable provision of state, local or foreign law).
(d) The Seller and the Buyers shall, to the extent permitted by Applicable Law and except as otherwise provided herein, elect with the relevant Tax Authority to close the taxable period of the Spirits Subsidiaries on the Closing Date provided that no election shall be made that would effect to a change in the accounting period of any qualifier regarding materiality or Material Adverse Effect)of the Spirits Subsidiaries for statutory accounting purposes. For purposes of this Agreement, provided, however, in the case of any Income Tax that Purchaseris payable for a taxable period that begins before the Closing Date and ends after the Closing Date, the LLC and their respective Affiliates and successors portion of such Income Tax which is payable (or credit or refund thereof) for the portion of such taxable period ending on the Closing Date shall fully cooperate with and take such reasonable actions as be the Seller may reasonably request amount which would be payable (or as are otherwise reasonably necessary to mitigate credited or refunded) if the Seller's liability with respect to this clause (v)relevant taxable period ended on the Closing Date.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Vivendi Universal)
Tax Indemnities. (a) From Seller shall be liable for and after the Closing Date, the Seller shall indemnify and hold the harmless Purchaser and each Pershing the Company solely out of the Indemnification Escrow and their respective officers, directors, employees any Available Reserve from and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): Losses, Taxes, and expenses arising out of: (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of liability for Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group Company for US federal income any Pre-Closing Tax purposes)Period; (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on breach of or inaccuracy in any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on representation or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) warranty (without giving effect to any qualifier regarding limitation as to materiality or Material Adverse Effect), Effect contained therein) made by Seller in Section 5.14 of this Agreement; and (iii) any breach of or failure by Seller to perform any covenant or obligation of Seller set forth in this Article X; provided, however, that PurchaserSeller shall not be liable for any Losses, Taxes, and expenses to the LLC extent such Losses, Taxes, and their respective Affiliates expenses were reflected and successors shall fully cooperate with carried in a specific tax reserve appearing on the Closing Balance Sheet, which had the effect of reducing the Purchase Price, and take such reasonable actions as the Seller may reasonably request or as shall be liable only for such Loss, Taxes, and expenses in excess of such reserve.
(b) In the case of Taxes (other than Transfer Taxes) that are otherwise reasonably necessary to mitigate the Seller's liability payable with respect to this clause a taxable period that begins before the Closing Date and ends after the Closing Date (v“Straddle Taxes”), the portion of any such Tax that is allocable to the Pre-Closing Tax Period (i) in the case of Taxes imposed on a periodic basis or otherwise measured by the level of any item, shall be the amount of such 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 period ending on the Closing Date and the denominator of which is the number of calendar days in the entire period irrespective of the lien or assessment date of such Taxes, and (ii) in the case of Taxes imposed on or measured by income, gross receipts, wages, expenses or other similar periodic measures or imposed on sales, assignments or any other transfers of any property shall be equal to the amount which would be payable if the taxable year ended with the Closing Date (based on an interim closing of the books as of the close of the Closing Date).
(c) Notwithstanding any other provision in this Agreement to the contrary, to the extent estimated Taxes have been paid by Seller, the Company or any Affiliate of Seller prior to the Closing Date, Seller’s liability for Taxes pursuant to this Agreement shall be reduced by the portion of such estimated Tax payments that relate or are allocable to the Pre-Closing Tax Period to the extent they can be utilized by Company as a credit against its Taxes owed pursuant to any Tax Return of Company filed with Seller or its Affiliates; provided, further, that if such payment of estimated Taxes exceeds Seller’s liability for such Taxes, Purchaser shall promptly pay Seller the amount of such excess.
(d) Within five (5) days after the Company Audit Decision, Seller and Purchaser shall review the decision and cooperate to reach agreement on the extent, if any, of the Company Audit Losses. If Seller and Purchaser are unable to reach a mutual agreement within thirty (30) days after the Company Audit Decision, the decision shall be submitted to a disinterested, independent certified public accounting firm mutually agreed upon by Seller and Purchaser, whose decision shall be binding on both Parties.
Appears in 1 contract
Tax Indemnities. (a) From Notwithstanding anything in this Agreement to the contrary, Seller and after the Closing DateSeller's Parent shall jointly and severally indemnify, the Seller shall indemnify defend and hold the Purchaser Indemnitees harmless from and each Pershing Company against, and their respective officersshall reimburse them for (i) any and all Losses sustained or incurred by a Purchaser Indemnitee resulting or arising from any inaccuracy in or breach of any of the Seller's representations and warranties set forth in Section 3.11 or any breach of any covenant, directorsobligation or agreement of Seller contained in this Agreement concerning Taxes, employees and agents harmless against (ii) any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by the Corporation or any Pershing Company predecessor of the Corporation with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable taxation period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller in excess of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed amount reserved for current Taxes payable on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by Financial Statements, including, without limitation, any such excess Taxes relating to:
(A) the Seller sale or distribution of the representations Excluded Assets in accordance with this Agreement;
(B) the amalgamation of the Corporation and warranties set forth in Section 3.20(eCNG Computer Networking Group, Inc. ("CNG") on January 1, 1999 to form Wiltel Communications (without giving effect to any qualifier regarding materiality or Material Adverse EffectCanada), Inc. and any Taxes resulting from any assessments or reassessments, if any, of the CNG Tax Returns;
(C) the amalgamation of Wiltel Communications (Canada), Inc. (formerly TTS Meridian Systems, Inc.) and Wiltel Holdings, Inc. on November 1, 1997 to form Wiltel Communications (Canada), 34 -30- Inc. and any Taxes resulting from any assessments or reassessments, if any, of the Wiltel Communications (Canada), Inc. (formerly TTS Meridian Systems, Inc.) Tax Returns; and
(D) any transactions the Corporation has undertaken with related non-residents; provided, however, that Purchaserno indemnity shall be provided by Seller under this Section 5.5.1 for any reduction in any net operating loss, capital loss or tax credit carryover allocable to the Corporation on or after the Closing Date.
(b) Payment by the Seller of any amount due under this Section 5.5.1 shall be made within thirty (30) days following written notice by the Purchaser or the Corporation that payment of such amounts to the appropriate Governmental Entity is due, provided that the Seller shall not be required to make any payment earlier than two (2) days before it is due to the appropriate Governmental Entity. In the case of any Taxes being contested in accordance with the provisions of Section 5.5.3, payment of such Taxes to the appropriate Governmental Entity will not be considered to be due earlier than the date a final determination to such effect is made by the appropriate Governmental Entity or a court or as required by any prevailing legislation in respect of Taxes if earlier.
(c) For purposes of this Agreement, in the case of any Tax (other than a Tax based upon or measured by income, a Tax based upon or measured by capital or a sales tax) that is imposed on a periodic basis and is payable for a period that begins before the Closing Date and ends after the Closing Date, the LLC portion of such Taxes payable for the period ending on the Closing Date by Seller shall be 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 Closing Date and their respective Affiliates and successors the denominator of which is the number of days in the entire period.
(d) Any amount otherwise payable by Seller under this Section 5.5.1 shall fully cooperate with and take such reasonable actions as be reduced by the Seller may reasonably request present value of any Tax benefit to Purchaser or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause Corporation for a period or portion thereof beginning after the Closing Date (va "Post-Closing Date Tax Benefit").
Appears in 1 contract
Samples: Sale and Purchase Agreement (Williams Communications Group Inc)
Tax Indemnities. (a) The Seller shall indemnify the Purchaser and the members of the Xxxxxx Group for, and hold them harmless from and against, (i) any Taxes imposed on any member of the Xxxxxx Group for or with respect to any Pre-Closing Period (including (A) any Taxes resulting from the Restructuring Transactions; (B) any Taxes resulting from the purchase by the Purchaser of the Xxxxxx Equity Interests; and (C) any Taxes imposed on any member of the Xxxxxx Group for or with respect to a Pre-Closing Period of a Transferred JV Entity (the “Pre- Closing Taxes”)); (ii) any Taxes imposed on any member of the Xxxxxx Group in respect of the income, profit, gains, business, property, operations or supplies of any member of the Seller Tax Group other than a member of the Xxxxxx Group; and (iii) Losses resulting from any breach of the representations and warranties set forth in Section 3.14; provided, however, that no indemnity shall be provided under this Agreement for any Taxes resulting from (x) any actions or inactions of the Purchaser, any Xxxxxx Holdco or any of their respective Affiliates on the Closing Date after the Closing Time; or (y) a breach by the Purchaser or any Xxxxxx Holdco of any of its obligations under this Agreement.
(b) From and after the Closing Date, the Seller Purchaser shall indemnify each member of the Seller Tax Group for, and hold the Purchaser it harmless from and each Pershing Company and their respective officersagainst, directors, employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof member of the Xxxxxx Group that ends on or before the Closing Date are not subject to indemnification pursuant to Section 7.01(a).
(including, without limitation, any obligation to contribute to the payment of c) Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to Straddle Period shall be a member apportioned between the portion of the Seller's affiliated group for US federal Straddle Period ending at the Closing Time and the portion of the Straddle Period beginning immediately after the Closing Time as follows: (i) in the case of real and personal property taxes and franchise taxes not based on gross or net income Tax purposes)or capital (including networth or long-term debt) or gross or net assets, on a per diem basis; (ii) in the case of Taxes imposed on specific transactions or events, on the basis of the date and, with respect to taxable periods beginning before the Closing Date Date, the time of the specific transaction or event subject to such Tax; and ending after (iii) in any other case, based on an interim closing of the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending books on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaserdepreciation, amortization and cost recovery deductions will be taken into account in accordance with the principles of clause (i) above and provided, further, that any transactions occurring on the Closing Date after the Closing Time shall be treated as occurring on the date after the Closing Date. Notwithstanding the foregoing, in the case of any Tax based upon or measured by capital (including net worth or long-term debt) or gross or net assets or intangibles, the LLC amount of such Tax allocated to the portion of the Straddle Period ending at the Closing Time shall be computed by reference to the average amount of such items during that portion of the Straddle Period (provided, however, that such method shall apply only where the relevant Law requires the use of average amounts and, in such a case, the frequency and their respective Affiliates method of averaging shall be as required by such Law, and successors in any other event, the amount of such Tax shall fully cooperate with be computed by reference to the amount of such items on the Closing Date). Any Taxes allocated under this Section 7.01(c) to the portion of a Straddle Period ending at the Closing Time shall be deemed to be Taxes imposed on a member of the Xxxxxx Group in respect of a Pre-Closing Period and take such reasonable actions as shall be subject to the Seller may reasonably request or as are otherwise reasonably necessary provisions of Section 7.01(a).
(d) In calculating amounts payable pursuant to mitigate the Seller's liability this Section 7.01, with respect to liabilities or indemnified amounts for any Indemnitee, such amounts shall be determined without duplication and computed net of any Tax Benefit or Tax Detriment actually realized in the tax year of payment of an indemnification amount by any payee or its Affiliate. The determination of whether there has been a Tax Benefit or Tax Detriment shall be made at the Indemnitee’s reasonable good faith discretion; provided that any Tax Detriment must be specified in reasonable detail to the Indemnitor. A Tax Benefit (or Tax Detriment) shall be treated as actually realized for purposes of this clause Section 7.01(d) in the taxable year in which the Indemnitee actually or constructively receives (vincluding by application against other Taxes) a refund or reduces the amount of its Tax liability for such year (or, in the case of a Tax Detriment, shall be treated as actually realized in the taxable year in which the Indemnitee’s Tax liability is increased, or its refund is reduced, for such year). In computing the amount of any such Tax Benefit, the Indemnitee shall be deemed to recognize all other items of loss, deduction or credit before recognizing any item arising from the payment of any indemnified Tax.
(e) Payment by an Indemnitor of any amount due under this Section 7.01 shall be made in cleared funds within 30 days following written notice by the Indemnitee of the obligation to make such payment but not more than two (2) Business Days before the Taxes that give rise to the indemnification obligation are due to the applicable Taxing Authority. In the case of a Tax that is contested in accordance with the provisions of Section 7.05, payment of such Tax to the applicable Taxing Authority will not be considered to be due earlier than the date of a Final Determination with respect to such Tax unless payment of such Tax is required by Law prior to such Final Determination.
Appears in 1 contract
Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's ’s affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "“Straddle Period"”), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC Company and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's ’s liability with respect to this clause (v).
Appears in 1 contract
Tax Indemnities. (ai) From Purchaser shall be liable for, and agrees to defend, hold harmless and indemnify S1 from and against any and all Taxes attributable to Edify, Edify Holding or any Subsidiary, or for which Purchaser, Edify, Edify Holding or any Subsidiary may be liable with respect to any period, or portion thereof, beginning after the Closing Date ("POST-CLOSING PERIODS"), and for any and all Transfer Taxes (as defined in 7.10(f)) incurred in connection with this Agreement.
(ii) S1 shall be liable for, and agrees to defend, hold harmless and indemnify Purchaser, including, after the Closing Date, the Seller shall indemnify Edify, Edify Holding and hold the Purchaser and each Pershing Company any Subsidiary and their respective officers, directors, employees officers and agents harmless against directors from and against: (A) any and all Taxes described in clause (except a) of the definition of Taxes accrued on the Closing Balance Sheet): (i) imposed on of, or payable by attributable to Edify, Edify Holding and any Pershing Company Subsidiary with respect to any taxable period or portion thereof that ends ending on or before the Closing Date or portion thereof and the portion through the end of the Closing Date for any Tax period that includes (but does not end on) the Closing Date (the "PRE-CLOSING PERIODS"), including, without limitation, any obligation to contribute and all Taxes relating to the payment income, business, activities, operations, property or assets of Taxes determined on a consolidatedEdify, combined Edify Holding or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company Subsidiaries with respect to any taxable period Pre-Closing Period and; (B) any and all Taxes described in clause (b) of the definition of Taxes to the extent Edify, Edify Holding or portion thereof that ends a Subsidiary would have been liable for such taxes on or before the Closing Date, including provided, that S1 shall be obligated to make payments to Purchaser pursuant to this Section 7.10(a)(ii) only to the pre-Closing extent that the amount that would otherwise be payable by S1 pursuant to this Section 7.10(a)(ii) (notwithstanding this proviso) exceeds the amount of the provisions for the specific Tax liability for which indemnity is sought reflected as a liability in the current portion of any Straddle Period because of a breach by the Seller of provisions for Tax liabilities as reflected in the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect)Financial Statements; and (vC) imposed on or payable by without duplication, any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of and all Taxes resulting from a breach by the Seller of the representations and warranties set forth in provisions of Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)3.9.
Appears in 1 contract
Samples: Merger Agreement (S1 Corp /De/)
Tax Indemnities. (a) From and after the Closing Date, the Seller shall indemnify and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed The Stockholders and Warrantholders covenant and agree to indemnify severally and not jointly (based on or payable by any Pershing each such Stockholder’s and Warrantholder’s Pro Rata Share), save and hold Purchaser Indemnified Persons harmless from (A) all Taxes of the Company with respect to and each Subsidiary for any taxable period or portion thereof that ends ending on or before the Closing Date (including, without limitation, any obligation to contribute a “Pre-Closing Period”) except to the payment extent such Taxes are accrued in the ordinary course of business and are individually reflected as accrued Tax liabilities in the Closing Working Capital in an amount and of a nature consistent with the Company’s past practice; (B) all Taxes determined on of any other Person that the Company or any Subsidiary is liable for as result of transferee liability, successor liability, or a consolidatedcontractual obligation, combined in each case, that is attributable to any Pre-Closing Period; (C) all Taxes arising as a result of the Company or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be Subsidiary being a member of the Seller's affiliated (or departing from) any consolidated, unitary or combined Tax group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because ; (D) all Taxes resulting from a breach of a breach by representation or warranty contained in Section 3.9 (Taxes) or Section 3.13 (Employee Benefit Plans) (but only to the Seller extent related to Tax matters), or any covenant of the representations and warranties set forth Company contained in Section 3.20(a7.2(a)(D) (in each case without giving effect but only to any qualifier regarding materiality the extent related to Tax matters) or Material Adverse EffectSection 7.2(b)(M); (iv) imposed because of a breach by the Seller , or of the representations and warranties set forth Stockholder Representative contained in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect)this Article VII; and (vE) imposed on all reasonable out-of-pocket costs and expenses (including attorneys’ fees and accountants’ fees) paid to third parties directly related to the assessment, collection, or payable by contest of any Pershing Tax for which the Purchaser Indemnified Persons are entitled to indemnification under this Agreement.
(ii) If the Stockholders and Warrantholders are obligated to pay any Tax of either the Company with respect or any Subsidiary, Purchaser shall be entitled to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before deduct such amount from the Closing Date because of a breach by the Seller Holdback Amount upon its determination of the representations and warranties set forth in Section 3.20(e) (without giving effect amount of any such Tax. Notwithstanding anything herein to the contrary, any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary obligation to mitigate the Seller's liability with respect indemnify any Purchaser Indemnified Person pursuant to this clause Section 7.11(a) shall be satisfied solely from the Holdback Amount and no Stockholder or Warrantholder shall have any liability under this Section 7.11 beyond such Stockholder’s or Warrantholder’s Pro Rata Share (v)as a percentage interest and the interest in dollar terms) of the Holdback Amount.
Appears in 1 contract
Tax Indemnities. (a) From After Closing and after subject to the Closing Dateterms of this Article 8, the Seller Vendor shall indemnify be liable for and pay and shall indemnify, defend and hold harmless the Purchaser Purchaser, the Corporation and each Pershing Company Subsidiary from and their respective officers, directors, employees against all Claims and agents harmless against Losses for Taxes of the Corporation or any and all Taxes of the Subsidiaries for periods (except Taxes accrued on the Closing Balance Sheet): (ior portions thereof) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends ending on or before the Closing Date (including, without limitation, any obligation to contribute including Pre-Closing Straddle Period Taxes) to the payment extent such Taxes have not been taken into account in the calculation of Final Net Working Capital, but excluding Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member arising out of the Seller's affiliated group transactions consummated pursuant to the Reorganization.
(b) After Closing and subject to the terms of this Article 8, the Purchaser shall be liable for US federal income Tax purposes); and pay and shall indemnify, defend and hold harmless the Vendor from and against all Claims and Losses for Taxes of the Corporation or any of the Subsidiaries for periods (iior portions thereof) with respect to taxable periods beginning before commencing after the Closing Date and ending after any Taxes of the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, Corporate Group arising out of the transactions consummated pursuant to Section 7.01(b)the Reorganization, to the portion of such period ending on the Closing Date; excluding: (iiii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Datefor greater certainty, including the prePre-Closing portion of any Straddle Period because Taxes not taken into account in the calculation of Final Net Working Capital, (ii) any Taxes payable as a result of a breach by the Seller Vendor of any representation, warranty or covenant in this Agreement and, (iii) any withholding tax payable as a consequence of any payment or deemed payment to the Vendor or its Affiliates.
(c) The Vendor agrees to indemnify, defend and save harmless the Purchaser and its Related Parties from all Claims and Losses suffered, sustained, paid or incurred by the Purchaser and the Related Parties as a result of or arising, directly or indirectly, out of or in connection with:
(i) any breach by the Vendor of any covenant relating to Taxes, or any inaccuracy of, any representation or warranty of the Vendor contained in Section 23 of Schedule 4.1 to this Agreement (disregarding all qualifications or limitation in the Vendor’s representations and warranties set forth in Section 3.20(a) (in each case without giving effect as to any qualifier regarding materiality “material”, “Material” or “Material Adverse Effect”) (provided that the Vendor shall not be required to so indemnify or save harmless the Purchaser and its Related Parties in respect of any breach or inaccuracy of any representation or warranty unless the Purchaser shall have provided notice to the Vendor in accordance with Section 12.3 on or prior to the expiration of the applicable time period related to such representation and warranty);
(ii) Taxes that may be payable by the Corporation and any of its Subsidiaries as a result of the resolution of a Tax Dispute, whether such resolution is achieved by way of settlement or pursuant to a judicial review of the matter in issue;
(iii) all Taxes of the Corporation or any of the Subsidiaries arising because any non-capital losses applied pursuant to paragraph (b) of the definition “Pre-Closing Straddle Period Taxes” in the calculation of Pre-Closing Straddle Period Taxes are determined to not be available for deduction by the Corporation or any Subsidiary following the Closing Date; and
(iv) imposed because all Taxes of the Corporation or any of its Subsidiaries that arise as a result of unwinding of the BVI Structure following the Closing Date, to the extent such Taxes have not been taken into account in the calculation of Final Net Working Capital, but excluding Taxes arising out of the transactions consummated pursuant to the Reorganization.
(d) The Vendor shall be entitled to any refund of Overpaid Taxes (net of any costs and expenses, including Taxes, that are incurred by Purchaser, the Corporation or any Subsidiary after the Closing Date in connection with the receipt of such refund) that are received by Purchaser, the Corporation or any Subsidiary after the Closing Date from (or applied as a credit against Taxes that are not the subject of a breach Tax Dispute by) a tax authority to the extent such amount is not taken into account in the calculation of Final Net Working Capital, except to the extent that such refund or credit arises as the result of the carryback of an amount from a period (or portion thereof) beginning after the Closing Date. The Purchaser will not cause Xxxxxx GCC Inc. to be dissolved prior to final determination of the Tax Disputes relating to the BVI Structure.
(e) If, as a result of any Claim, assessment or amended Tax Return, there is any change after the Closing Date in an item of income, gain, loss, deduction or credit that results in an increase in an income Tax liability for which the Vendor would otherwise be liable pursuant to Sections 8.1(a) or (c), and that change results in an actual decrease in the income Tax that has been paid by the Seller Purchaser, the Corporation or any Subsidiary for which the Purchaser would be liable pursuant to Section 8.1(b), the Vendor’s liability pursuant to Sections 8.1(a) or (c) shall be reduced to the extent of such decrease. To the extent any such increase in income Tax liability is paid by the Vendor pursuant to Sections 8.1(a) or (c) the Purchaser shall pay the Vendor an amount equal to the lesser of the representations amount of such increase and warranties set forth the amount of such decrease, to the extent that such decrease is realized within four (4) years of when such increase was realized. In computing the amount of any such decrease, the Purchaser, the Corporation and any Subsidiary shall be deemed to have applied all other available items of income, gain, loss, deduction or credit before it applies any item arising from an increase in Taxes referred to in this Section 3.20(d8.1(e).
(f) or 3.20(gSection 8.1(a) and Section 8.1(c) are not intended to permit the Purchaser to recover for the same amount more than once.
(g) Notwithstanding any other provision of this Agreement, the indemnities provided in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable this Section 8.1 shall not be limited by any Pershing Company other provision of this Agreement other than pursuant to Sections 5.1, 6.1, 6.3, 6.4, 12.11 and this Article 8.
(h) In this Article 8 references to the Purchaser, the Corporation and any of its Subsidiaries include any successors thereto, whether by merger, amalgamation, dissolution, reorganization or otherwise.
(i) Notwithstanding anything to the contrary in this Agreement, Taxes arising out of the transactions consummated pursuant to the Reorganization shall not include Taxes payable with respect to payments made a Tax Dispute that commenced, was pending or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends was threatened on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)Execution.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Johnstone Tank Trucking Ltd.)
Tax Indemnities. (a) From and after the Closing --------------- Date, each Seller, jointly and severally among the Seller shall members of the Xxxxxx Group, and severally (and not jointly) as between the Xxxxxx Group and Xxxxxxxx, agrees to indemnify and hold the harmless Purchaser and each Pershing the Company and their respective officers, directors, employees and agents harmless Affiliates against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitationincluding but not limited to, any obligation to contribute to the payment of Taxes Tax determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing or included the Company), imposed on, and Taxes resulting from against any Pershing Company ceasing to be a member of costs or expenses (including, without limitation, reasonable attorney's fees) incurred by the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to (i) a breach of the representations and warranties made in Section 2.16 and (ii) any taxable period or portion thereof that ends on or before the Closing Date, except to the extent that the amount of such Taxes (together with all Taxes as of the Closing Date) does not exceed the amount reserved for as a current liability for Taxes (and not including deferred Taxes reflecting timing differences between book and Tax income liabilities in the pre-Closing portion Balance Sheet (but taking into account previous payments made after the Closing Date of any Straddle Period because Taxes included in the Closing Balance Sheet) and taken into account in the Closing Net Worth ("Reserved -------- Taxes"), except that, in the case of a breach of the representation contained in ----- Section 2.16(f), Taxes reflecting timing differences between book and Tax income liabilities shall be included); provided, however, that no indemnity shall be -------- ------- provided under this Agreement for any Tax resulting from (x) an actual or deemed election under Section 338 of the Code with respect to the transactions contemplated by this Agreement; or (y) any transaction of the Company, occurring on the Closing Date but after the Closing that is not in the ordinary course of business. Sellers also shall indemnify Purchaser, the Company, and their affiliates against any Taxes imposed on the receipt or accrual of any indemnity payment and its Tax effects so that on an after-Tax basis, Purchaser receives an indemnity for Taxes described in the preceding sentence. If the income Tax deduction for the Xxxxxx/St. Xxxxx Payments and the Bonus Payments to be claimed by the Seller Company under Section 6.02 of this Agreement is disallowed in whole or in part, Sellers shall promptly pay to Purchaser or the representations Company any Tax which is payable by Purchasers or the Company due to the disallowance of these deductions, to the extent that such deductions have been taken into account in adjusting the Purchase Price or otherwise have been paid to the Sellers.
(b) From and warranties set forth in Section 3.20(a) (in after the Closing Date, Purchaser and the Company shall indemnify each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations Sellers and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) their affiliates against all Taxes imposed on or payable by any Pershing Company with respect to payments made the Company that are not subject to indemnification pursuant to paragraph (a) of this Section 6.01, including, but not limited to, Taxes (i) resulting from an actual or information reporting obligations arising deemed election under Section 338 of the Code with respect to the transactions contemplated by this Agreement or (ii) resulting from any payments transaction of the Company occurring on the Closing Date but after the Closing that is not in the ordinary course of business.
(c) Payment by the indemnitor of any amount due under this Section 6.01 shall be made within ten days following written notice by the indemnitee that payment of such amounts to the appropriate tax authority is due it being understood that in the case of a Tax that is contested in accordance with the provisions of Section 6.04, payment of the Tax to the appropriate tax authority will not be considered to be due (unless the applicable taxing authority requires payment prior to a final determination or in order to contest the Tax) earlier than the date a final determination to such effect is made by the appropriate taxing authority or a court, provided that the indemnitor shall not -------- be required to make any payment earlier than ten business days before it is due to the appropriate tax authority. If any Seller receives an assessment or other reportable transactions that occurred in a notice of Tax due with respect to the Company for any period or a portion thereof that ends ending on or before the Closing Date for which Sellers are not responsible, in whole or in part, pursuant to paragraph (a) of this Section 6.01 because all or a part of such Tax does not exceed the amount of Reserved Taxes, and such Seller pays such Tax, then Purchaser or the Company shall refund to such Seller, in accordance with the first sentence of this Section 6.01(c), the amount of such Tax for which such Seller is not responsible.
(d) For purposes of this Agreement, in the case of any Tax that is imposed on a breach periodic basis and is payable for a period that begins before the Closing Date and ends after the Closing Date, the portion of such Taxes payable for the period ending on the Closing Date shall be (i) in the case of any Tax based upon or measured by income or receipts, the Seller amount which would be payable if the taxable year ended on the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis, such as the deduction for depreciation, shall be apportioned on a time basis, (ii) ad -- valorem Taxes (including, without limitation, real and personal property Taxes) ------- shall be accrued on a daily basis over the period for which the Taxes are levied, or if it cannot be determined over what period the Taxes are being levied, over the fiscal period of the representations relevant taxing authority, in each case irrespective of the lien or assessment date of such Taxes, and warranties set forth in Section 3.20(e(iii) (without giving effect franchise and other privilege Taxes not measured by income shall be accrued on a daily basis over the period to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, which the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)privilege relates.
Appears in 1 contract
Tax Indemnities. (a) From and after the Closing Date, the The Seller shall indemnify and hold the Purchaser --------------- and each Pershing Company and their respective officers, directors, employees and agents harmless Polymetrics against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on the Seller or payable by any Pershing Company member of an affiliated group with which the Seller files a federal consolidated or combined income tax return (excluding Polymetrics and the Subsidiaries) with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before includes the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iiiii) imposed on Polymetrics or payable by any Pershing Company Subsidiary with respect to any taxable period or portion thereof that ends on or before the Closing Date, including but, in each case, only to the pre-extent that such Taxes are in excess of the amount expressly reserved for Taxes on the Closing portion Financial Statements; provided, however, that no indemnity shall be provided under this Agreement for -------- ------- any Taxes resulting from (i) an election under Section 338 of the Internal Revenue Code with respect to the transactions contemplated by this Agreement except as provided in Section 2.07 of this Agreement, or (ii) a reduction in any Straddle Period because net operating loss, capital loss or tax credit carryover allocable to Polymetrics or any Subsidiary. Without limiting the foregoing, the Seller shall also indemnify the Purchaser and Polymetrics against all Taxes arising out of a breach by of any representation and warranty contained in Section 3.16
(b) The Purchaser and Polymetrics shall indemnify the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) its affiliates against all Taxes imposed on or payable by any Pershing Company with respect to payments made Polymetrics and its Subsidiaries that are not subject to indemnification pursuant to paragraph (a) of this Section 7.01 or information reporting obligations arising Section 2.07, including, but not limited to, Taxes (i) resulting from an election under Section 338 of the Internal Revenue Code with respect to the transactions contemplated by this Agreement or (ii) with respect to any payments taxable period which begins after the Closing Date.
(c) Any Taxes for a tax period beginning before the Closing Date and ending after the Closing Date shall be apportioned between the Seller and the Purchaser, in the case of real and personal property taxes and franchise taxes not based on gross or net income, on a per diem basis and, in the case of other Taxes (including, without limitation, sale and transfer Taxes), shall be determined based on the actual operation of Polymetrics and the Subsidiaries during the portion of such period ending on the Closing Date and the portion of such period beginning on the day following the Closing Date. Each such portion of such period shall be deemed to be a tax period subject to the provisions of Section 7.01(a) and 7.01(b) above.
(d) Payment by the indemnitor of any amount due under this Section 7.01 or Section 2.07 shall be made within ten days following written notice by the indemnitee that payment of such amounts to the appropriate tax authority is due, provided that the indemnitor shall not be required to make any payment earlier than two days before it is due to the appropriate tax authority. If the Seller receives an assessment or other reportable transactions that occurred in a notice of Taxes due with respect to Polymetrics or any of its Subsidiaries for any period or a portion thereof that ends ending on or before the Closing Date for which the Seller is not responsible, in whole or in part, pursuant to paragraph (a) of this Section 7.01 because all or a part of such Tax does not exceed the amount reserved for such Tax in the books and records of Polymetrics or the Subsidiaries as of the Closing Date, and the Seller pays such Tax, then the Purchaser or Polymetrics shall reimburse the Seller, within the time provided in the first sentence of this Section 7.01(d), the amount of such Tax for which Seller is not responsible. In the case of a breach Tax that is contested in accordance with the provisions of Section 7.04, payment of the Tax to the appropriate tax authority will not be considered to be due earlier than the date a final determination to such effect is made by the Seller appropriate taxing authority or a court.
(e) With the exception of a reimbursement pursuant to Section 7.01(d), the respective indemnification obligations of the representations Purchaser and warranties set forth in the Seller pursuant to this Section 3.20(e) 7.01 shall not be effective until the aggregate dollar amount of all Taxes which would otherwise be indemnifiable pursuant to this Section 7.01 by such party exceeds $25,000 (without giving effect to any qualifier regarding materiality or Material Adverse Effectthe "Tax Threshold Amount"), providedand then only to the -------------------- extent such aggregate amount exceeds the Tax Threshold Amount. For the purposes of this Section 7.01(e), howeverin computing such aggregate amount of claims, that the amount of each claim shall be deemed to be an amount net of any Tax benefit to the Purchaser, Polymetrics or any Subsidiary for a period or portion thereof beginning after the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause Closing Date (va "Post-Closing Date Tax Benefit").. -----------------------------
Appears in 1 contract
Samples: Stock Purchase Agreement (United States Filter Corp)
Tax Indemnities. (a) From and after The Sellers shall indemnify the Closing DatePurchaser, the Seller shall indemnify and hold the Purchaser Company and each Pershing of the Company and their respective officers, directors, employees and agents harmless Subsidiaries against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes a Tax determined on a consolidated, combined or unitary basis with respect to a group of corporations that include includes or included the Company or any Pershing Company, of its Subsidiaries and Taxes resulting from the Company or any Pershing Company of its Subsidiaries ceasing to be a member of a tax group that includes any person other than the Seller's affiliated group for US federal income Tax purposes); Purchaser or its Affiliates) (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iiii) imposed on the Company or payable by any Pershing of its Subsidiaries or for which the Company with respect to or any of its Subsidiaries may otherwise be liable for any taxable year or period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect)and, provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to any taxable year or period beginning before and ending after the Closing Date (a "Straddle Period"), the portion of such taxable year or period ending on and including the Closing Date (including, for the avoidance of doubt, any franchise or similar Tax imposed on the Company or any of its Subsidiaries in 2004 which amount may be determined by reference to the taxable income of the Company or any of its Subsidiaries in 2003), (ii) imposed on the Sellers or any Affiliates of the Sellers (other than the Company or any of its Subsidiaries) for any taxable year, and (iii) imposed on the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries may otherwise be liable which are resulting from, attributed to, or caused by the Election made according to Section 6.01(a) of this clause Agreement or Section 754 Election made according to Section 6.01(b) of this Agreement.
(vb) Except as provided in Section 6.02(a), the Purchaser shall indemnify the Sellers against any liability imposed on the Sellers with respect to the Taxes of the Company or any of its Subsidiaries for any taxable year or period that begins on the day after the Closing Date and, with respect to any taxable year or period beginning before and ending after the Closing Date, the portion of such taxable year or period beginning on the day after the Closing Date.
(c) To the extent permitted by law or administrative practice, the taxable year of the Company and each of its Subsidiaries shall end on and include the Closing Date. For purposes of Sections 6.02(a) and (b), whenever it is necessary to determine the liability for Taxes of the Company or any of its Subsidiaries for a portion of a taxable year or period that begins before and ends after the Closing Date, the determination of the Taxes of the Company or any of its Subsidiaries, as the case may be, for the portion of the year or period ending on, and the portion of the year or period beginning on the day after the Closing Date, shall be determined by assuming that the Company or any of its Subsidiaries, as the case may be, had a taxable year or period that ended at the close of the Closing Date, except that (i) real estate Taxes, or other property or asset-based Taxes (which, for the avoidance of doubt, shall not include any franchise or similar Taxes) and (ii) exemptions, allowances or deductions that are calculated on an annual basis shall be apportioned on a time basis relative to the Closing Date.
Appears in 1 contract
Tax Indemnities. (a) From and after the Closing Date, the each Seller shall without duplication (severally and not jointly in proportion to each Seller’s Purchase Price Percentage) indemnify the Purchaser Indemnified Parties against and hold the Purchaser and each Pershing Company and their respective officers, directors, employees and agents harmless against from any and all Losses with respect to Taxes (except Taxes accrued on each a “Tax Loss” and collectively, the Closing Balance Sheet): “Tax Losses”) arising out of (i) imposed on or other than as reflected as a liability in the financial statements and taken into account in determining the Closing Adjustment Amount, any Taxes which become payable by any Pershing Company or with respect to any the SGA Company Parties for taxable period periods or portion portions thereof that ends ending on or before the Closing Date (includingthe “Pre-Closing Tax Period”), without limitationwhether directly, any obligation to contribute to the payment of Taxes determined or that are imposed on a consolidatedSGA Company Party by reason of transferee or successor liability, combined by contract, the operation of law, or unitary basis otherwise, in each case determined under the principles of Section 6.02(b); and (ii) Taxes imposed on a Purchaser Indemnified Party as a result of, and proximately caused by, (x) a SGA Fundamental Warranty Breach with respect to a group representation or warranty set forth in Section 3.16 or (y) the breach of corporations any covenant or agreement set forth in Section 5.09 or this Article VI; provided, that include the calculation of any Pershing CompanyTax Losses pursuant to this Section 6.02(a)(ii) shall be determined without giving effect to any Material Adverse Effect, materiality or similar qualifiers.
(b) For purposes of this Article VI, any Taxes for, and Taxes resulting from any Pershing Company ceasing to income in respect of, a “Straddle Period” (a Tax period that includes, but does not end on, the Closing Date) shall be a member of apportioned between the Seller's affiliated group for US federal income Pre-Closing Tax purposes); (ii) with respect to Period, on the one hand, and the taxable periods or portions thereof beginning before the Closing Date and ending after the Closing Date (the “Post-Closing Tax Period”), on the other hand. The income and gain of the SGA Companies shall be allocated between the Purchaser and the Sellers in respect of a Straddle Period based on a closing of the books of the relevant SGA Company effective as of the Closing Date. The amount of any such periodTaxes based on or measured by income, gain or receipts of the SGA Companies shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period on a "closing-of-the-books basis. The amount of other Taxes shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in the following manner: (A) in the case of a real or personal property Tax imposed on property (excluding, for the avoidance of doubt, any income Tax) and that applies ratably to a Straddle Period", the amount of Tax allocable to a portion of the Straddle Period shall be the total amount of such Tax for the period in question multiplied by a fraction, the numerator of which is the total number of days in such portion of such Straddle Period and the denominator of which is the total number of days in such Straddle Period, and (B) in the case of sales, value-added, withholding and similar transaction-based Taxes (other than Conveyance Taxes allocated under Section 6.04), such Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), shall be allocated to the portion of the Straddle Period in which the relevant transaction occurred.
(c) After the Closing, a Purchaser Indemnified Party shall promptly notify the Indemnifying Party in writing of any demand, claim or notice of the commencement of an audit received by such period ending on the Closing Date; (iii) imposed on party from any Governmental Authority or payable by any Pershing Company other Person with respect to any taxable period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Taxes for which such other Party is liable pursuant to this Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect)6.02; (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchasera failure to give such notice will not affect such other party’s rights to indemnification under this Article VI, except to the LLC extent that such Party is actually and their respective Affiliates materially prejudiced thereby. Such notice shall contain factual information (to the extent known) describing the asserted Tax liability and successors shall fully cooperate with and take include copies of the relevant portion of any notice or other document received from any Governmental Authority or any other Person in respect of any such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)asserted Tax liability.
Appears in 1 contract
Samples: Securities Purchase Agreement (Virtus Investment Partners, Inc.)
Tax Indemnities. (a) From and after The Sellers shall indemnify the Closing DatePurchaser, the Seller shall indemnify and hold the Purchaser Company and each Pershing of the Company and their respective officers, directors, employees and agents harmless Subsidiaries against any and all Taxes (except Taxes accrued on the Closing Balance Sheet): (i) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing Date (including, without limitation, any obligation to contribute to the payment of Taxes a Tax determined on a consolidated, combined or unitary basis with respect to a group of corporations that include includes or included the Company or any Pershing Company, of its Subsidiaries and Taxes resulting from the Company or any Pershing Company of its Subsidiaries ceasing to be a member of a tax group that includes any -61- person other than the Seller's affiliated group for US federal income Tax purposes); Purchaser or its Affiliates) (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iiii) imposed on the Company or payable by any Pershing of its Subsidiaries or for which the Company with respect to or any of its Subsidiaries may otherwise be liable for any taxable year or period or portion thereof that ends on or before the Closing Date, including the pre-Closing portion of any Straddle Period because of a breach by the Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect)and, provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to any taxable year or period beginning before and ending after the Closing Date (a "Straddle Period"), the portion of such taxable year or period ending on and including the Closing Date (including, for the avoidance of doubt, any franchise or similar Tax imposed on the Company or any of its Subsidiaries in 2004 which amount may be determined by reference to the taxable income of the Company or any of its Subsidiaries in 2003), (ii) imposed on the Sellers or any Affiliates of the Sellers (other than the Company or any of its Subsidiaries) for any taxable year, and (iii) imposed on the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries may otherwise be liable which are resulting from, attributed to, or caused by the Election made according to Section 6.01(a) of this clause (v)Agreement or Section 754 Election made according to Section 6.01(b) of this Agreement.
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Tax Indemnities. (ai) From Purchaser shall be liable for, and agrees to defend, hold harmless and indemnify S1 from and against any and all Taxes attributable to Edify, Edify Holding or any Subsidiary, or for which Purchaser, Edify, Edify Holding or any Subsidiary may be liable with respect to any period, or portion thereof, beginning after the Closing Date (“Post-Closing Periods”), and for any and all Transfer Taxes (as defined in 7.10(f)) incurred in connection with this Agreement.
(ii) S1 shall be liable for, and agrees to defend, hold harmless and indemnify Purchaser, including, after the Closing Date, the Seller shall indemnify Edify, Edify Holding and hold the Purchaser and each Pershing Company any Subsidiary and their respective officers, directors, employees officers and agents harmless against directors from and against: (A) any and all Taxes described in clause (except a) of the definition of Taxes accrued on the Closing Balance Sheet): (i) imposed on of, or payable by attributable to Edify, Edify Holding and any Pershing Company Subsidiary with respect to any taxable period or portion thereof that ends ending on or before the Closing Date or portion thereof and the portion through the end of the Closing Date for any Tax period that includes (but does not end on) the Closing Date (the “Pre-Closing Periods”), including, without limitation, any obligation to contribute and all Taxes relating to the payment income, business, activities, operations, property or assets of Taxes determined on a consolidatedEdify, combined Edify Holding or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, a "Straddle Period"), Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company Subsidiaries with respect to any taxable period Pre-Closing Period and; (B) any and all Taxes described in clause (b) of the definition of Taxes to the extent Edify, Edify Holding or portion thereof that ends a Subsidiary would have been liable for such taxes on or before the Closing Date, including provided, that S1 shall be obligated to make payments to Purchaser pursuant to this Section 7.10(a)(ii) only to the pre-Closing extent that the amount that would otherwise be payable by S1 pursuant to this Section 7.10(a)(ii) (notwithstanding this proviso) exceeds the amount of the provisions for the specific Tax liability for which indemnity is sought reflected as a liability in the current portion of any Straddle Period because of a breach by the Seller of provisions for Tax liabilities as reflected in the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect)Financial Statements; and (vC) imposed on or payable by without duplication, any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of and all Taxes resulting from a breach by the Seller of the representations and warranties set forth in provisions of Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)3.9.
Appears in 1 contract
Samples: Merger Agreement (Intervoice Inc)
Tax Indemnities. (a) Tax Indemnification by Seller. From and after the Closing Date, the without duplication, Seller shall indemnify indemnify, hold harmless and hold defend the Purchased Subsidiaries, Purchaser and each Pershing Company and their respective its Affiliates, officers, directors, employees employees, agents, consultants, representatives and agents harmless successors, from and against Retained Tax Liabilities and any and all Taxes (except Taxes accrued i) imposed on the Purchased Subsidiaries or relating to the Business or the Target Assets with respect to Pre-Closing Balance Sheet): Tax Periods, (iii) imposed on any Purchased Subsidiary (x) with respect to a Pre-Closing Tax Period by reason of such Purchased Subsidiary being severally liable for any Taxes of any Tax Affiliate pursuant to U.S. Treasury Regulations Section 1.1502-6 (or any analogous provision of applicable U.S. state or local or non-U.S. Tax Law), (y) with respect to any Straddle Period by reason of such Purchased Subsidiary being severally liable pursuant to U.S. Treasury Regulations Section 1.1502-6 (or any analogous provision of applicable U.S. state or local or non-U.S. Tax Law) for any Taxes of any Tax Affiliate that is included in a Consolidated Group that includes Seller or any Affiliate of Seller, or (z) as a transferee or successor, by contract or otherwise, as a result of any acquisition, disposition, contribution, distribution or similar transaction that occurred prior to the Closing, (iii) imposed upon or payable by Purchaser, any of Purchaser's Affiliates or any Purchased Subsidiary by reason of or attributable to the breach by Seller of any representation, warranty, covenant or agreement relating to Taxes under this Agreement (in the case of any representation or warranty, without regard to materiality or Material Adverse Effect qualifications contained therein), (iv) imposed on or payable by Purchaser, any Pershing Company of Purchaser's Affiliates or any Purchased Subsidiary resulting from or arising out of the Restructuring Transactions, (v) imposed on Worcestor Controls Licensco Inc. with respect to Pre-Closing Tax Periods by reason of an election under Section 338(h)(10) of the Code (or any actual or deemed election under applicable U.S. state or local Tax Law that is analogous or comparable to Section 338(h)(10) of the Code) with respect to Worcestor Controls Licensco Inc., (vi) Transfer Taxes for which Seller is responsible pursuant to Section 17.7, (vii) imposed on a U.K. Purchased Subsidiary with respect to a Post-Closing Tax Period as a result of the requirement under applicable Tax Law that such U.K. Purchased Subsidiary include an item of income, profits or gains in taxable income for such Post-Closing Tax Period if under applicable Tax Law such item of income, profits or gain is treated as earned, accrued or received or is deemed to have been earned, accrued or received, in each case by such U.K. Purchased Subsidiary during any Pre-Closing Tax Period, (viii) imposed on a U.K. Purchased Subsidiary with respect to any taxable period Pre-Closing Tax Period as a result of such U.K. Purchased Subsidiary having secondary liability for a Tax liability of Seller or portion thereof that ends on any present or before the Closing Date former Affiliate of Seller, other than any U.K. Purchased Subsidiary (including, without limitation, any obligation to contribute to the payment of Taxes determined Tax imposed on a consolidatedU.K. Purchased Subsidiary with respect to any Pre-Closing Tax Period by reason of the failure of Seller or any such Affiliate of Seller to pay such Tax at any time) if such secondary liability arises by operation of applicable Tax Law, combined or unitary basis regardless of whether such secondary liability arises as a result of such U.K. Subsidiary being included in a Tax Return filed by a Consolidated Group with respect to a group of corporations Pre-Closing Tax Period that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (includes Seller or any such periodAffiliate of Seller or a contractual arrangement with Seller or any such Affiliate of Seller, or (ix) any Deemed Taxation Liability of a "Straddle Period")U.K. Purchased Subsidiary, Taxes imposed on any Pershing Company which are allocableexcept, pursuant to Section 7.01(b)in each case, to the portion of extent Purchaser is otherwise liable for such period ending on Taxes under this Article XVII (the Closing Date; (iii) imposed on or payable by any Pershing Company with respect to any taxable period or portion thereof that ends on or before the Closing DateTaxes described in this Section 17.1(a), including the pre-Closing portion of any Straddle Period because of a breach by the collectively, "Seller of the representations and warranties set forth in Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse EffectIndemnified Taxes"); (iv) imposed because of a breach by the Seller of the representations and warranties set forth in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that PurchaserSeller shall not have any indemnification obligations with respect to, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are not otherwise reasonably necessary to mitigate the Seller's liability be responsible for, any Taxes with respect to this clause Post-Closing Tax Periods (vincluding any Taxes allocated to Post-Closing Tax Periods pursuant to Section 17.6) arising out of or resulting from any reduction in any losses, credits, Reliefs, allowances or other similar Tax attributes of, or allocated under applicable Tax Law to, the Purchased Subsidiaries arising in or attributable to Pre-Closing Tax Periods (including such losses, credits, Reliefs, allowances or other similar Tax attributes which are allocated to Pre-Closing Tax Periods pursuant to Section 17.6).
Appears in 1 contract
Tax Indemnities. (a1) From In addition to and after the Closing Datewithout limiting any other indemnity obligations of Seller hereunder, the Seller shall indemnify indemnify, defend, and hold the Purchaser harmless Buyer Indemnitees from and each Pershing Company and their respective officers, directors, employees and agents harmless against any and all Claims asserted against, resulting to, imposed on, sustained, incurred or suffered by, or asserted against the Buyer Indemnitees, directly or indirectly, by reason of or resulting from: (a) all Taxes (except Taxes accrued on imposed upon the Closing Balance Sheet): (i) imposed on Company or payable by any Pershing Company of the Subsidiaries with respect to any taxable period or portion thereof that ends ending on or before the Closing Date (“Pre-Closing Periods”), and for any Straddle Periods, but only with respect to the portion of any such Straddle Period ending on the Closing Date and calculated in the manner provided in Section 14(f) of this Contract, (b) any breach or inaccuracy in any Tax Representation, without regard to any qualifications for knowledge of the Sellers, but only for the Tax Survival Period; provided that if such liability for a Tax Representation is otherwise separately intended to be covered such time limitation is not intended as limitation, (c) any breach or failure by Seller to perform (or cause to be performed) any of the covenants or agreements set forth in Section 14(d)(3), Section 14(f) or this Section 16(c) (including, without limitation, any obligation to contribute to all the payment of Taxes determined on a consolidated, combined or unitary basis with respect to a group of corporations that include any Pershing Company, and Taxes resulting from any Pershing Company ceasing to be a member provisions hereof regarding the maintenance of the Seller's affiliated group for US federal income Tax purposes); (ii) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date (any such period, Company as a "Straddle Period"REIT), (d) any Taxes imposed on any Pershing Company which are allocable, pursuant to Section 7.01(b), to the portion of such period ending on the Closing Date; (iii) imposed on or payable by any Pershing Company with respect related to any taxable period Excluded Asset or portion thereof that ends on or before the Closing Date, including the pre-Closing portion divesture of any Straddle Period Excluded Asset (whether known or unknown by Buyer prior to Closing) and any litigation, claims, suit or proceeding involving any Subsidiary (other than the LLCs) or any Excluded Assets whether known or unknown and whether arising or accruing before or after Closing; and (e) Tax liability under D.C. Code Annotated §42-1103 arising in connection with the transfer of the Shares because of a breach transfer by any person (as defined in D.C. Code Annotated §42-1101(6)) of any direct or indirect beneficial interest in either 1201 Owner or 1225 Owner prior to the Seller Closing (including the transfer of the representations and warranties set forth in Shares) other than any direct or indirect transfer by or through the Company or any of its Subsidiaries occurring after the Closing. The maximum liability of Seller under this Section 3.20(a) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect16(c)(1); (iv) imposed because of a , together with Seller’s liability for breach by the Seller of the representations and warranties set forth Tax Representations shall not exceed One Hundred Million Dollars ($100,000,000) in Section 3.20(d) or 3.20(g) (in each case without giving effect to any qualifier regarding materiality or Material Adverse Effect); and (v) imposed on or payable by any Pershing Company with respect to payments made or information reporting obligations arising with respect to any payments or other reportable transactions that occurred in a period or a portion thereof that ends on or before the Closing Date because of a breach by the Seller of the representations and warranties set forth in Section 3.20(e) (without giving effect to any qualifier regarding materiality or Material Adverse Effect), provided, however, that Purchaser, the LLC and their respective Affiliates and successors shall fully cooperate with and take such reasonable actions as the Seller may reasonably request or as are otherwise reasonably necessary to mitigate the Seller's liability with respect to this clause (v)aggregate.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
