Tax Returns and Contests. (a) The Tax Returns of the Company and the Subsidiaries required to be filed for all periods ending on or before the Closing Date (including any Tax Return for the short period ending on the Closing Date), that are required to be filed after the Closing Date shall be prepared and filed by Seller or its Affiliates at the expense of Seller. Such Tax Returns shall be prepared in a manner consistent with the Tax Returns of the Company and the Subsidiaries filed before the Closing Date for prior fiscal periods unless otherwise required by applicable Law. Without limiting the foregoing, in preparing such Tax Returns, Seller shall be required to consult in good faith with Purchaser regarding any change in any Tax accounting practice, policy or method and the making or revocation of any election relating to Taxes, except for any actions described on Schedule 5.2(vi) of the Disclosure Schedule. To the extent that the operations of the Company reflected on such Tax Returns are required to be included in the Tax Return of Seller and its Affiliates, Seller or such Affiliates, as the case may be, shall cause the operations of the Company to be so included. Any officer of the Company or any Subsidiary as of the day immediately preceding the Closing Date shall have the authority, and by execution of this Agreement Purchaser hereby grants any such officer the authority, to sign any of such Tax Returns. (b) Purchaser shall prepare or cause to be prepared and file or cause to be filed at its expense any Tax Returns of Purchaser, the Company or any Subsidiary required to be filed separately or as part of a consolidated Tax Return for all periods that end after the Closing Date (including periods that begin before the Closing Date and end after the Closing Date), which are filed after the Closing Date. Such Tax Returns shall be prepared in a manner consistent with the Tax Returns of the Company and the Subsidiaries filed before the Closing Date for prior fiscal periods unless Purchaser reasonably determines that there is a material risk of penalties. Such Tax Returns that include any period or portion of a period including the Closing Date as are required to be filed separately or as a part of a consolidated, unitary or combined Tax Return of Purchaser and its Affiliates (but not any consolidated Tax Return) shall be submitted to Seller at least fifteen (15) days before the first date on which such Tax Returns are legally required to be filed, including extensions, to enable Seller to review, comment on and approve such Tax Returns (such approval not to be unreasonably withheld, conditioned or delayed). Purchaser shall cooperate with Seller in connection with Seller’s review of such Tax Returns and provide to Seller such additional information related to the operations of the Company and the Subsidiaries as Seller shall reasonably request in connection with such review. Purchaser and Seller shall consult with each other in good faith to resolve any issues arising as a result of such review and approval. (c) Purchaser shall promptly notify Seller in writing upon receipt by Purchaser, any of its Affiliates or the Company of notice of any pending or threatened federal, state, local or foreign income or franchise Tax audits or assessments that may affect the Tax liabilities of Seller or Tax liability for which Seller may be required to indemnify Purchaser pursuant to this Agreement. (d) Seller shall have the sole and exclusive right, power and authority, at its expense, to negotiate, resolve, settle, or contest any notice of audit or assessment referred to in Section 11.2(c) and to represent and act for and on behalf of Seller, Purchaser, the Company and the Subsidiaries in connection with any such audit or assessment, including refund claims of any Tax liability for any period ending on or before the Closing Date. Seller shall keep Purchaser reasonably informed of the progress thereof. Notwithstanding the foregoing, Seller shall not resolve, settle, compromise, or abandon any issue or claim without the prior written consent of Purchaser if such action would materially and adversely affect the Tax liabilities of Purchaser, the Company or any Subsidiary in any period after the Closing Date (including the imposition of any income Tax deficiencies, the reduction of asset basis on cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions or the reduction of loss or credit carryforwards). Such consent shall not be unreasonably withheld, conditioned or delayed and shall not be necessary if Seller has fully indemnified Purchaser against the effects of any such action.
Appears in 1 contract
Tax Returns and Contests. (a) The Tax Returns of the Seller and of the Company in respect of the operations of the Company and the Subsidiaries required to be filed separately or as part of a consolidated Tax Return of an Affiliated Group for all periods ending on or before the Closing Date (including any Tax Return for the short period ending on the Closing Date), that are required to be filed after the Closing Date shall be prepared and filed by the Seller or its Affiliates at the expense of Seller. Such the Seller and such Tax Returns shall be prepared in a manner consistent with the past practice; provided, however, that all such Tax Returns of the Company and the Subsidiaries filed shall be delivered to Buyer not less than five (5) Business Days before the Closing Date for prior fiscal periods unless otherwise required by applicable Law. Without limiting the foregoing, in preparing filing thereof to provide Buyer with an opportunity to review such Tax Returns, Seller and no such Tax Return shall be required to consult in good faith filed without the prior written consent of Buyer if such Tax Return is not consistent with Purchaser regarding any change in any Tax accounting practice, policy or method and the making or revocation of any election relating to Taxes, except for any actions described on Schedule 5.2(vi) of the Disclosure ScheduleSeller’s past practices. To the extent that the operations of the Company and the Subsidiaries reflected on such Tax Returns are required to be included in the consolidated, unitary or combined Tax Return of the Seller and its Affiliates, the Seller or such its Affiliates, as the case may be, shall cause the operations of the Company and the Subsidiaries to be so included. Any officer of the Company or any Subsidiary as of the day immediately preceding the Closing Date The Seller shall have the authority, and by execution of this Agreement Purchaser hereby grants any such officer the authority, pay all Taxes due with respect to sign any of such Tax Returns.
(b) The Purchaser shall prepare or cause to be prepared and file or cause to be filed at its expense any Tax Returns of Purchaser, the Purchaser and the Company or any Subsidiary and the Subsidiaries required to be filed separately or as part of a consolidated Tax Return of an Affiliate Group for all periods that end after the Closing Date (including periods that begin before the Closing Date and end after the Closing DateStraddle Period), which are filed after the Closing Date. Such Any such Tax Returns that relate to the Straddle Period shall be prepared in a manner consistent with the Tax Returns of the Company and the Subsidiaries referred to in Section 6.02(a) filed on or before the Closing Date for prior fiscal periods unless Purchaser reasonably determines that there is a material risk of penaltiesperiods. Such Any such Tax Returns that include any period or portion of a period including relate to the Closing Date Straddle Period as are required to be filed separately or as a part of a consolidated, unitary or combined Tax Return of the Purchaser and its Affiliates (but not any consolidated Tax Return) shall be submitted to the Seller at least fifteen (15) 15 days before the first date on which such Tax Returns are legally required to be filed, including extensions, to enable the Seller to review, comment on and approve such Tax Returns (and no such approval not to Tax Return shall be unreasonably withheld, conditioned or delayed)filed until such Tax Return has been approved by the Seller. The Purchaser shall cooperate with the Seller in connection with the Seller’s review of such Straddle Period Tax Returns and provide to the Seller such additional information related to the operations of the Company and as the Subsidiaries as Seller shall reasonably request in connection with such review. The Purchaser and the Seller shall consult with each other in good faith to resolve any issues arising as a result of such review and approval. The Seller shall pay to the Purchaser, at least two Business Days prior to the filing of the Tax Return, the amount of Taxes properly allocated to the Seller under Section 6.01(d).
(c) The Purchaser shall promptly notify the Seller in writing upon receipt by the Purchaser, any of its Affiliates or the Company or any Subsidiary of notice of any pending or threatened federal, state, local or foreign income or franchise Tax audits or assessments that may affect the Tax liabilities of the Seller or Tax liability for which the Seller may be required to indemnify the Purchaser pursuant to this Agreement; provided, however, the failure to give such notice shall not affect the indemnification provided hereunder except to the extent that the Seller or any of its Affiliates has suffered damage or prejudice by reason of such failure to give, or any delay in giving, such notice.
(d) The Seller shall have the sole and exclusive right, power and authority, at its expense, to negotiate, resolve, settle, or contest any notice of audit or assessment referred to in Section 11.2(c6.02(c) and to represent and act for and on behalf of the Seller, Purchaser, the Purchaser and the Company and the Subsidiaries in connection with any such audit or assessment, including refund claims of any Tax liability for any period ending on or before the Closing Date. The Seller shall keep the Purchaser reasonably informed of the progress thereof. Notwithstanding the foregoing, the Seller shall not resolve, settle, compromise, or abandon any issue or claim without the prior written consent of the Purchaser if such action would materially and adversely affect the Tax liabilities of Purchaser, Purchaser or the Company or any Subsidiary and the Subsidiaries in any period after the Closing Date and the portion of the Straddle Period that begins on the Closing Date (including the imposition of any income Tax deficiencies, the reduction of asset basis on cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions or the reduction of loss or credit carryforwards). Such consent shall not be unreasonably withheld, conditioned or delayed withheld and shall not be necessary if to the extent that the Seller has fully indemnified the Purchaser against the effects of any such actionsettlement.
(e) The Purchaser shall have the sole and exclusive right, power and authority, at its expense, to negotiate, resolve, settle, or contest any such notice of audit or assessment referred to in Section 6.02(c), including refund claims of any Tax liability, for any period ending after the Closing Date. To the extent that any Seller has indemnified the Purchaser with respect to any such notice of audit or assessment, the Purchaser shall keep the Seller informed of the progress thereof and the Purchaser shall not, and shall not permit the Company or any Subsidiary to, resolve, settle, compromise, or abandon any issue or claim without the prior written consent of the Seller if such action would materially and adversely affect the Tax liabilities of the Seller or any of its Affiliates for any period (including the imposition of any income Tax deficiencies, the reduction of asset basis on cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions or the reduction of loss or credit carryforwards). Such consent shall not be unreasonably withheld and shall not be necessary to the extent that the Purchaser notifies the Seller in writing that it shall forego any obligation of the Seller to indemnify the Purchaser against the effects of any such settlement.
(f) The Purchaser and the Seller shall, and the Purchaser shall cause the Company and the Subsidiaries to, cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of all Tax Returns and any audit, litigation, or other proceeding with respect to Taxes. Such cooperation shall include prompt notices to each party to this Agreement of any audit, investigation, or inquiry by any Governmental Authority as to any such Tax Return reflecting activity of the Company and the Subsidiaries on or before the date of this Agreement. Such cooperation also shall include the retention and (upon the request of any other party) the provision of records and information that are reasonably relevant to any Tax Return of the Company or any Subsidiary (but not including any information or Tax Returns of the Seller or any of its Affiliates other than the Company or such Subsidiary), audit, litigation, or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Purchaser agrees (i) to retain all books and records with respect to Taxes or Tax matters pertinent to the Company and the Subsidiaries relating to any taxable period beginning before the date of this Agreement until the expiration of the statute of limitations (and any extension thereof) of the respective taxable periods, and (ii) to give the Seller reasonable written notice before transferring, destroying, or discarding any such books and records and, if the Seller so requests, the Purchaser shall allow the Seller to take possession of such books and records. The Purchaser and the Seller further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Authority or other Person as may be necessary to mitigate, reduce, or eliminate any Taxes that could be imposed (including with respect to the consummation of the Transactions).
Appears in 1 contract
Tax Returns and Contests. (a) The Tax Returns of the Seller and of the Company in respect of the operations of the Company and the Subsidiaries required to be filed separately or as part of a consolidated Tax Return of an Affiliated Group for all periods ending on or before the Closing Date (including any Tax Return for the short period ending on the Closing Date), that are required to be filed after the Closing Date shall be prepared and filed by the Seller or its Affiliates at the expense of Seller. Such the Seller and such Tax Returns shall be prepared in a manner consistent with the past practice; provided, however, that all such Tax Returns of the Company and the Subsidiaries filed shall be delivered to Buyer not less than five (5) Business Days before the Closing Date for prior fiscal periods unless otherwise required by applicable Law. Without limiting the foregoing, in preparing filing thereof to provide Buyer with an opportunity to review such Tax Returns, Seller and no such Tax Return shall be required to consult in good faith filed without the prior written consent of Buyer if such Tax Return is not consistent with Purchaser regarding any change in any Tax accounting practice, policy or method and the making or revocation of any election relating to Taxes, except for any actions described on Schedule 5.2(vi) of the Disclosure ScheduleSeller's past practices. To the extent that the operations of the Company and the Subsidiaries reflected on such Tax Returns are required to be included in the consolidated, unitary or combined Tax Return of the Seller and its Affiliates, the Seller or such its Affiliates, as the case may be, shall cause the operations of the Company and the Subsidiaries to be so included. Any officer of the Company or any Subsidiary as of the day immediately preceding the Closing Date The Seller shall have the authority, and by execution of this Agreement Purchaser hereby grants any such officer the authority, pay all Taxes due with respect to sign any of such Tax Returns.
(b) The Purchaser shall prepare or cause to be prepared and file or cause to be filed at its expense any Tax Returns of Purchaser, the Purchaser and the Company or any Subsidiary and the Subsidiaries required to be filed separately or as part of a consolidated Tax Return of an Affiliate Group for all periods that end after the Closing Date (including periods that begin before the Closing Date and end after the Closing DateStraddle Period), which are filed after the Closing Date. Such Any such Tax Returns that relate to the Straddle Period shall be prepared in a manner consistent with the Tax Returns of the Company and the Subsidiaries referred to in Section 6.02(a) filed on or before the Closing Date for prior fiscal periods unless Purchaser reasonably determines that there is a material risk of penaltiesperiods. Such Any such Tax Returns that include any period or portion of a period including relate to the Closing Date Straddle Period as are required to be filed separately or as a part of a consolidated, unitary or combined Tax Return of the Purchaser and its Affiliates (but not any consolidated Tax Return) shall be submitted to the Seller at least fifteen (15) 15 days before the first date on which such Tax Returns are legally required to be filed, including extensions, to enable the Seller to review, comment on and approve such Tax Returns (and no such approval not to Tax Return shall be unreasonably withheld, conditioned or delayed)filed until such Tax Return has been approved by the Seller. The Purchaser shall cooperate with the Seller in connection with the Seller’s 's review of such Straddle Period Tax Returns and provide to the Seller such additional information related to the operations of the Company and as the Subsidiaries as Seller shall reasonably request in connection with such review. The Purchaser and the Seller shall consult with each other in good faith to resolve any issues arising as a result of such review and approval. The Seller shall pay to the Purchaser, at least two Business Days prior to the filing of the Tax Return, the amount of Taxes properly allocated to the Seller under Section 6.01(d).
(c) The Purchaser shall promptly notify the Seller in writing upon receipt by the Purchaser, any of its Affiliates or the Company or any Subsidiary of notice of any pending or threatened federal, state, local or foreign income or franchise Tax audits or assessments that may affect the Tax liabilities of the Seller or Tax liability for which the Seller may be required to indemnify the Purchaser pursuant to this Agreement; provided, however, the failure to give such notice shall not affect the indemnification provided hereunder except to the extent that the Seller or any of its Affiliates has suffered damage or prejudice by reason of such failure to give, or any delay in giving, such notice.
(d) The Seller shall have the sole and exclusive right, power and authority, at its expense, to negotiate, resolve, settle, or contest any notice of audit or assessment referred to in Section 11.2(c6.02(c) and to represent and act for and on behalf of the Seller, Purchaser, the Purchaser and the Company and the Subsidiaries in connection with any such audit or assessment, including refund claims of any Tax liability for any period ending on or before the Closing Date. The Seller shall keep the Purchaser reasonably informed of the progress thereof. Notwithstanding the foregoing, the Seller shall not resolve, settle, compromise, or abandon any issue or claim without the prior written consent of the Purchaser if such action would materially and adversely affect the Tax liabilities of Purchaser, Purchaser or the Company or any Subsidiary and the Subsidiaries in any period after the Closing Date and the portion of the Straddle Period that begins on the Closing Date (including the imposition of any income Tax deficiencies, the reduction of asset basis on cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions or the reduction of loss or credit carryforwards). Such consent shall not be unreasonably withheld, conditioned or delayed withheld and shall not be necessary if to the extent that the Seller has fully indemnified the Purchaser against the effects of any such actionsettlement.
(e) The Purchaser shall have the sole and exclusive right, power and authority, at its expense, to negotiate, resolve, settle, or contest any such notice of audit or assessment referred to in Section 6.02(c), including refund claims of any Tax liability, for any period ending after the Closing Date. To the extent that any Seller has indemnified the Purchaser with respect to any such notice of audit or assessment, the Purchaser shall keep the Seller informed of the progress thereof and the Purchaser shall not, and shall not permit the Company or any Subsidiary to, resolve, settle, compromise, or abandon any issue or claim without the prior written consent of the Seller if such action would materially and adversely affect the Tax liabilities of the Seller or any of its Affiliates for any period (including the imposition of any income Tax deficiencies, the reduction of asset basis on cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions or the reduction of loss or credit carryforwards). Such consent shall not be unreasonably withheld and shall not be necessary to the extent that the Purchaser notifies the Seller in writing that it shall forego any obligation of the Seller to indemnify the Purchaser against the effects of any such settlement.
(f) The Purchaser and the Seller shall, and the Purchaser shall cause the Company and the Subsidiaries to, cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of all Tax Returns and any audit, litigation, or other proceeding with respect to Taxes. Such cooperation shall include prompt notices to each party to this Agreement of any audit, investigation, or inquiry by any Governmental Authority as to any such Tax Return reflecting activity of the Company and the Subsidiaries on or before the date of this Agreement. Such cooperation also shall include the retention and (upon the request of any other party) the provision of records and information that are reasonably relevant to any Tax Return of the Company or any Subsidiary (but not including any information or Tax Returns of the Seller or any of its Affiliates other than the Company or such Subsidiary), audit, litigation, or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Purchaser agrees (i) to retain all books and records with respect to Taxes or Tax matters pertinent to the Company and the Subsidiaries relating to any taxable period beginning before the date of this Agreement until the expiration of the statute of limitations (and any extension thereof) of the respective taxable periods, and (ii) to give the Seller reasonable written notice before transferring, destroying, or discarding any such books and records and, if the Seller so requests, the Purchaser shall allow the Seller to take possession of such books and records. The Purchaser and the Seller further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Authority or other Person as may be necessary to mitigate, reduce, or eliminate any Taxes that could be imposed (including with respect to the consummation of the Transactions).
Appears in 1 contract
Tax Returns and Contests. (a) The Tax Returns of the Company and the Subsidiaries required to be filed for all periods ending on or before the Closing Date (including any Tax Return for the short period ending on the Closing Date), that are required to be filed after the Closing Date shall be prepared and filed by Seller or its Affiliates at the expense of Seller. Such Tax Returns shall be prepared in a manner consistent with the Tax Returns of the Company and the Subsidiaries filed before the Closing Date for prior fiscal periods unless otherwise required by applicable Law. Without limiting the foregoing, in preparing such Tax Returns, Seller shall be required to consult in good faith with Purchaser regarding any change in any Tax accounting practice, policy or method and the making or revocation of any election relating to Taxes, except for any actions described on Schedule 5.2(vi) of the Disclosure Schedule. To the extent that the operations of the Company reflected on such Tax Returns are required to be included in the Tax Return of Seller and its Affiliates, Seller or such Affiliates, as the case may be, shall cause the operations of the Company to be so included. Any officer of the Company or any Subsidiary as of the day immediately preceding the Closing Date shall have the authority, and by execution of this Agreement Purchaser hereby grants any such officer the authority, to sign any of such Tax Returns.
(b) Purchaser shall prepare or cause to be prepared and file or cause to be filed at its expense any Tax Returns of Purchaser, the Company or any Subsidiary required to be filed separately or as part of a consolidated Tax Return for all periods that end after the Closing Date (including periods that begin before the Closing Date and end after the Closing Date), which are filed after the Closing Date. Such Tax Returns shall be prepared in a manner consistent with the Tax Returns of the Company and the Subsidiaries filed before the Closing Date for prior fiscal periods unless Purchaser reasonably determines that there is a material risk of penalties. Such Tax Returns that include any period or portion of a period including the Closing Date as are required to be filed separately or as a part of a consolidated, unitary or combined Tax Return of Purchaser and its Affiliates (but not any consolidated Tax Return) shall be submitted to Seller at least fifteen (15) days before the first date on which such Tax Returns are legally required to be filed, including extensions, to enable Seller to review, comment on and approve such Tax Returns (such approval not to be unreasonably withheld, conditioned or delayed). Purchaser shall cooperate with Seller in connection with Seller’s review of such Tax Returns and provide to Seller such additional information related to the operations of the Company and the Subsidiaries as Seller shall reasonably request in connection with such review. Purchaser and Seller shall consult with each other in good faith to resolve any issues arising claim as a result of such review and approval.
(c) Purchaser a notice from a Tax authority shall promptly notify be treated as a Third Party Claim subject to the provisions of Section 7.5 hereof. In applying those provisions, neither the Buyer nor the Seller in writing upon receipt by Purchaser, any of its Affiliates or the Company of notice of any pending or threatened federal, state, local or foreign income or franchise Tax audits or assessments that may affect the Tax liabilities of Seller or Tax liability for which Seller may be required to indemnify Purchaser pursuant to this Agreement.
(d) Seller Parties shall have the sole and exclusive right, power and authority, at its expense, to negotiate, resolve, settle, or contest any notice of audit or assessment referred to in Section 11.2(c) and to represent and act for and on behalf of Seller, Purchaser, the Company and the Subsidiaries in connection with any such audit or assessment, including refund claims of any Tax liability for any period ending on or before the Closing Date. Seller shall keep Purchaser reasonably informed of the progress thereof. Notwithstanding the foregoing, Seller shall not resolve, settle, compromise, or abandon any issue or claim without the prior written consent of Purchaser the Buyer or the Seller Parties, as applicable, if such action would materially and adversely affect the Tax liabilities of Purchaserthe Buyer or the Seller Parties, the Company or any Subsidiary as applicable, in any period after the Closing Date (including the imposition of any income Tax deficiencies, the reduction of asset basis on cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions or the reduction of loss or credit carryforwards). Such consent shall not be unreasonably withheld.
(b) The Buyer and the Seller Parties shall cooperate fully, conditioned as and to the extent reasonably requested by the other party, in connection with the filing of all Tax Returns and any audit, litigation, or delayed other proceeding with respect to Taxes. Such cooperation shall include the retention and shall not (upon the request of any other party) the provision of records and information that are reasonably relevant to any Tax Return of the Company, audit, litigation, or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Buyer and the Seller Parties agree (i) to retain all books and records with respect to Taxes or Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and any extension thereof) of the respective taxable periods, and (ii) to give the other party reasonable written notice before transferring, destroying, or discarding any such books and records and, if the other party so requests, to allow the other party to take possession of such books and records. The Buyer and Seller Parties further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Entity or other Person as may be necessary if to mitigate, reduce, or eliminate any Taxes that could be imposed (including with respect to the consummation of the transactions contemplated herein).
(c) The consideration paid for the Acquired Assets shall be allocated among the Acquired Assets in accordance with a schedule to be mutually agreed upon by Buyer and Seller has fully indemnified Purchaser against Parties within 60 days following Closing. The parties intend such allocation to be in accordance with the effects provisions contained in Treasury Regulation Section 1.1060-1T(d) and the parties agree to report the acquisition for federal income tax purposes in accordance with such allocation. In furtherance of any the foregoing, the parties agree to execute and deliver Internal Revenue Service Form 8594 reflecting such actionallocation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Acceris Communications Inc)
