(United States First Circuit) - In a dispute arising out of a merger agreement in which one party agreed to indemnify the other against a purely hypothetical tax loss,involving the issue of whether the prepayments and credits, and resulting tax refunds, and affect the tax indemnification obligation of the sellers,the District Court's judgment in favor of sellers is vacated and remanded for further proceedings where; 1) the indemnification provision is ambiguous as to how the tax refunds affect the indemnification obligation of the sellers; and 2) the parties' arguments approximately the purpose and negotiating history of the provision cannot be resolved without the aid of a fact-finder.
Source: findlaw.com