8Taxes. (a) Each of the Acquired Companies has timely filed with the appropriate Governmental Body all material Tax Returns required to be filed by it, or with respect to, such entity. All such material Tax Returns have been properly completed in compliance with applicable legal requirements and are true, correct and complete in all material respects. No Acquired Company is currently the beneficiary of any extension of time within which to file any Tax Return other than extensions automatically available by statute. (b) All material Taxes due and owing by the Acquired Companies (whether or not shown on any Tax Return) have been timely paid and the Acquired Companies have adequately reserved in the Financial Statements in accordance with GAAP for all material Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the dates thereof. Since the end of the most recent period covered by the Financial Statements, the Acquired Companies have not incurred any liability for Taxes outside the Ordinary Course of Business. The Acquired Companies have complied in all material respects with applicable Tax Laws. (c) All material Taxes (including, without limitation, all Canadian withholding taxes) required to be withheld by any Acquired Company have been withheld and have been (or will be) duly and timely paid to the proper Governmental Body. Each Acquired Company has properly requested, received and retained any material exemption certificates and other documentation supporting any claimed exemption or waiver of Taxes on sales or other transaction as to which the Acquired Companies otherwise would have been obligated to collect or withhold Taxes. Each Acquired Company has materially complied with all information reporting and record keeping requirements under all applicable Tax Laws, including retention and maintenance of required records with respect thereto. (d) Except as set forth on Schedule 4.8(d) of the Company Disclosure Schedules, there is no pending or, to the knowledge of the Acquired Companies, threatened disputes, audits, investigations, examinations, proceedings, demands, causes of action, suits, arbitrations, inquiries, hearings, requests for information, filing, claim, proposed adjustments, assessments or other actions or proceedings (whether administrative, regulatory or otherwise) by any Governmental Body concerning any Tax liability of any Acquired Company is currently in progress. There are no matters under discussion with any Governmental Body with respect to the liability of an Acquired Company with respect to Taxes that would reasonably be expected to result in an additional liability for Taxes with respect to the Acquired Companies. All deficiencies claimed, proposed or asserted or assessments made against any Acquired Company by any Governmental Body have been fully paid (or will be timely paid prior to the Closing (if the Closing occurs)) and no rationale underlying a claim for Taxes has been asserted previously by any Governmental Body that reasonably could be expected to be asserted in any other period and that likely would result in additional liability for Taxes with respect to any Acquired Company. (e) Each Acquired Company is in material compliance with all applicable transfer pricing Law and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of such Acquired Company, and the prices charged, paid, or incurred between (or among) each of the Acquired Companies and their respective Affiliates, or any combination thereof, for any property or services (or for the use of money or any other property) are arm’s-length prices for purposes of all applicable transfer pricing Law (and no other material consideration has been charged, paid, or incurred for any such property or services other than those documented prices that were charged, paid, and incurred for such property and services). (f) No claim has ever been made by a Governmental Body in a jurisdiction where the Acquired Companies do not file a Tax Return that an Acquired Company is required to file a Tax Return or pay Tax in such jurisdiction. (g) Except as set forth on Schedule 4.8(g) of the Company Disclosure Schedules, the Acquired Companies have not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to the assessment or collection of any Tax, nor has any request been made in writing for any such extension or waiver other than extensions automatically available by statute. There is no power of attorney in effect or in force with respect to Taxes, or any matter related to Taxes, of any Acquired Company. (h) There are no liens for Taxes upon any property or asset of any Acquired Company (other than Permitted Liens). (i) No Acquired Company has (i) deferred any payment of Taxes (that would otherwise be due) through any automatic extension or other grant of relief provided by a Pandemic Response Law, except to the extent accurately reflected as Debt hereunder or (ii) sought any other Tax benefit from any applicable Governmental Body related to any governmental response to COVID-19 (including, without limitation, any benefit provided or authorized by a Pandemic Response Law). (j) Except as set forth on Schedule 4.8(j) of the Company Disclosure Schedules, no Acquired Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in or use of an improper method of accounting for a taxable period ending on or prior to the Closing Date (whether pursuant to Section 481 of the Code, Section 263A of the Code, or otherwise), (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) executed on or prior to the Closing Date, (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, (v) prepaid amount received on or prior to the Closing Date, (vi) deferred revenue accrued prior to the Closing Date, (vii) deferred gains arising prior to the Closing Date, (viii) election under Section 108(i) of the Code (or any corresponding provision of applicable state, local, provincial, or non-U.S. Law), (ix) except to the extent accurately reflected as Debt hereunder, “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) or “subpart F income” within the meaning of Section 951 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law) of any Acquired Company (or any Affiliate of any Acquired Company) attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date (i.e., measured as though the Closing Date were the last day of the applicable taxable period), or (x) any election under Section 965(h) of the Code. (k) The Company is not, and has never been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract, and the Company is not and has never been a party to or bound by any offer in compromise, closing agreement, gain recognition agreement or other agreement with any Governmental Body with respect to Taxes. No Tax ruling has been applied for or received by the Company. (l) Except as set forth on Schedule 4.8(l) of the Company Disclosure Schedules, no Acquired Company has or will have any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, operation of Law or otherwise. (m) Except as set forth on Schedule 4.8(m) of the Company Disclosure Schedules, no Acquired Company has ever been included in (or includible in) any “affiliated group” within the meaning of Section 1504(a)(1) of the Code (other than an “affiliated group” within the meaning of Section 1504(a)(1) of the Code of which the Company is the common parent of such “affiliated group” within the meaning of Section 1504(a)(1) of the Code). (n) The U.S. federal income tax classification of each Acquired Company is set forth on Schedule 4.8(n) of the Company Disclosure Schedules. (o) No Acquired Company is or ever has had any branch, agency, permanent establishment, or other taxable presence outside of the country where it is organized. (p) No Acquired Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code. (q) No Acquired Company ever has entered into or participated in any transaction that is described as (x) a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(1) (or any similar provision of state, local, or non-U.S. Law) or (y) a “tax shelter” within the meaning of Section 6662 of the Code or the Treasury Regulations promulgated thereunder (or any similar provision of state, local, or non-U.S. Law). (r) Each reference to any Acquired Company in this Section 4.8 shall be deemed to include, and shall include, (x) each Person that merged with and into, or liquidated into, such Acquired Company and (y) each Person for which such Acquired Company has any successor or transferee liability (whether by Contract, Law, or otherwise).
Appears in 1 contract
8Taxes. (a) Each of the Acquired Companies has timely filed with the appropriate Governmental Body all material All Tax Returns required to be filed by it, or with respect toto each Acquired Company have been timely filed in accordance with all applicable Laws (taking into account any valid extensions), and such entity. All such material Tax Returns have been properly completed in compliance with applicable legal requirements and are true, correct and complete in all material respects. All Taxes due and owing by or with respect to each Acquired Company have been duly and timely paid. Each Acquired Company has made adequate provision in the Audited Financial Statements as of December 31, 2020 in accordance with GAAP for the payment of, all material Taxes with respect to each Acquired Company for all open periods (including any portions thereof) and for all such amounts owed or accrued and not otherwise paid. Since the Balance Sheet Date, no material liability for Taxes has been incurred or accrued by or with respect to any Acquired Company outside the Ordinary Course.
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, each of the following has been delivered or made available, as applicable, to Purchaser in a timely manner prior to the date hereof: (1) complete copies of all Income Tax Returns and other material Tax Returns of and with respect to each First Tier Acquired Company and Upper Tier Fund, which have been filed through the date hereof for the three (3) preceding taxable years, have been delivered to the Purchaser prior to the date hereof, (2) all revenue agent’s reports, notices or proposed notices of deficiency or assessment, audit reports, information document requests, material correspondence and other similar documentation relating to Taxes or Tax Returns of or with respect to any Acquired Company relating to all tax years for which the statute of limitations has not expired; (3) all ruling requests, technical advice memoranda, closing or similar agreements, gain recognition agreements (within the meaning of Treasury Regulations Section 1.367(a)-8 or 8T (as applicable)), or similar agreements or documents relating or attributable to an Acquired Company that could reasonably be expected to affect any period of Purchaser or any of its Affiliates ending after the Closing Date or for which the statute of limitations has not expired or for which Purchaser or its Affiliates has any Tax or other liability; (4) all Tax Sharing Agreements or similar agreements to which any Acquired Company is a party or under which any Acquired Company has any Tax liability (other than any contract entered into in the ordinary course of business no primary purpose of which relates to Taxes)); and (5) all Tax abatement or similar contracts (or any other contracts) with any Governmental Authority to which any Acquired Company is a party (other than any contract entered into in the ordinary course of business no primary purpose of which relates to Taxes.
(c) There are no Liens for Taxes (other than Taxes not yet due) upon any property or assets of any Acquired Company.
(d) There are no Tax Audits currently active or pending with regard to any Taxes or Tax Returns with respect to any Acquired Company or the Seller Parties (with respect to the assets or activities of the Acquired Companies) and no such Tax Audit is threatened in writing (or, to the Knowledge of the Company, otherwise). No Acquired Company is currently or Seller Party has received any written (or, to the beneficiary Knowledge of the Company, other) notice of any intent to initiate any Tax Audit or to open any other review or any written request for information with respect to Tax matters. Except as set forth on Section 4.8(d) of the Company Disclosure Letter, no written (or, to the Knowledge of the Company, other) claim has ever been made by a Tax Authority in a jurisdiction where an Acquired Company or the Seller Parties (with respect to the assets or activities of the Acquired Companies) does not file Tax Returns that any such party is or may be subject to taxation by, or a requirement to file any Tax Return in, that jurisdiction. There is no litigation or assessment pending or proposed with respect to any liability for Tax that relates to an Acquired Company.
(e) No Acquired Company or Seller Party (with respect to any Acquired Company) is a party to or bound by any agreement providing for the allocation, indemnification, or sharing of Taxes (other than any agreement entered into in the ordinary course of business no primary purpose of which relates to Taxes) (collectively, “Tax Sharing Agreements”), and none of the Acquired Companies, Purchaser, Parent, or any of their respective Affiliates shall have any liability after the Closing Date pursuant to any such agreement.
(f) There are no elections with respect to Taxes affecting any Acquired Company, other than such elections shown on or in the Tax Returns that have been delivered or made available to Purchaser prior to the date of this Agreement.
(g) No Acquired Company or Seller Party (with respect to any Acquired Company) has (i) agreed, or is required, to make any adjustment pursuant to Section 481(a) of the Code (or similar provisions of other Laws), (ii) filed a pending application with any Tax Authority requesting permission for any change in accounting method, or (iii) received a written (or, to the Knowledge of the Company, other) notice from the IRS or any other Tax Authority proposing any such adjustment or change in accounting method.
(h) Each Acquired Company and Seller Party (with respect the Acquired Companies) (1) has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any present or former employees, agents, independent contractors, creditors or members or any other Person, and (2) has complied with all other withholding Tax provisions and information reporting requirements and has properly maintained any and all certificates, forms, and other documents required by Law for any exemption from withholding and remitting any Taxes or collecting and remitting any Taxes, as applicable.
(i) No extension of time within which to file any Tax Return other than extensions automatically available by statute.
(b) All material Taxes due and owing by the Acquired Companies (whether or not shown on any Tax Return) have been timely paid and the Acquired Companies have adequately reserved in the Financial Statements in accordance with GAAP for all material Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the dates thereof. Since the end of the most recent period covered by the Financial Statements, the Acquired Companies have not incurred any liability for Taxes outside the Ordinary Course of Business. The Acquired Companies have complied in all material respects with applicable Tax Laws.
(c) All material Taxes (including, without limitation, all Canadian withholding taxes) required relates to be withheld by any Acquired Company have been withheld and have been (or will be) duly and timely paid to the proper Governmental Body. Each an Acquired Company has properly requestedbeen requested or granted, received and retained which Tax Return has not since been timely filed (other than any material exemption certificates and other documentation supporting any claimed exemption or waiver automatic extension for which approval of Taxes on sales or other transaction as to which the Acquired Companies otherwise would have been obligated to collect or withhold Taxes. Each Acquired Company has materially complied with all information reporting and record keeping requirements under all applicable a Tax Laws, including retention and maintenance of required records with respect thereto.
(d) Except as set forth on Schedule 4.8(d) of the Company Disclosure Schedules, there Authority is no pending or, to the knowledge of the Acquired Companies, threatened disputes, audits, investigations, examinations, proceedings, demands, causes of action, suits, arbitrations, inquiries, hearings, requests for information, filing, claim, proposed adjustments, assessments or other actions or proceedings (whether administrative, regulatory or otherwise) by any Governmental Body concerning any Tax liability of any Acquired Company is currently in progressnot required). There are no matters under discussion with waivers or extensions (nor any Governmental Body request for the foregoing) of any applicable statute of limitations for the assessment or collection of Taxes or claim for Taxes which remain in effect (other than any automatic extension for which approval of a Tax Authority is not required).
(j) There are no Tax rulings, requests for rulings, or closing agreements relating to any Acquired Company which could affect its liability (or that of Purchaser, Parent, or any of their respective Affiliates) for Taxes for any period after the Closing Date. Except for powers of attorney granted to the Acquired Company’s accountants and advisors in the Ordinary Course with respect to the liability routine payroll matters, no power of attorney has been granted by or on behalf of an Acquired Company with respect to any matter relating to Taxes that would reasonably be expected to result which is currently in an additional liability for Taxes with respect to the Acquired Companies. All deficiencies claimed, proposed or asserted or assessments made against any Acquired Company by any Governmental Body have been fully paid (or will be timely paid prior to the Closing (if the Closing occurs)) and no rationale underlying a claim for Taxes has been asserted previously by any Governmental Body that reasonably could be expected to be asserted in any other period and that likely would result in additional liability for Taxes with respect to any Acquired Companyforce.
(e) Each Acquired Company is in material compliance with all applicable transfer pricing Law and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of such Acquired Company, and the prices charged, paid, or incurred between (or among) each of the Acquired Companies and their respective Affiliates, or any combination thereof, for any property or services (or for the use of money or any other property) are arm’s-length prices for purposes of all applicable transfer pricing Law (and no other material consideration has been charged, paid, or incurred for any such property or services other than those documented prices that were charged, paid, and incurred for such property and services).
(f) No claim has ever been made by a Governmental Body in a jurisdiction where the Acquired Companies do not file a Tax Return that an Acquired Company is required to file a Tax Return or pay Tax in such jurisdiction.
(g) Except as set forth on Schedule 4.8(g) of the Company Disclosure Schedules, the Acquired Companies have not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to the assessment or collection of any Tax, nor has any request been made in writing for any such extension or waiver other than extensions automatically available by statute. There is no power of attorney in effect or in force with respect to Taxes, or any matter related to Taxes, of any Acquired Company.
(h) There are no liens for Taxes upon any property or asset of any Acquired Company (other than Permitted Liens).
(ik) No Acquired Company or Seller Party has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) (i) deferred or any payment similar provision of Taxes (that would otherwise be due) through any automatic extension U.S. state, local or other grant of relief provided by a Pandemic Response Law, except to the extent accurately reflected as Debt hereunder or (ii) sought any other Tax benefit from any applicable Governmental Body related to any governmental response to COVID-19 (including, without limitation, any benefit provided or authorized by a Pandemic Response non-U.S. Law).
(jl) Except as set forth on Schedule 4.8(j) of the Company Disclosure Schedules, no No Acquired Company or Seller Party (with respect to an Acquired Company) will be required to include any material item of income or gain in, or be required to exclude any material item of deduction of loss from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in accounting method that is either agreed to on or prior to the Closing Date or required by law for a Pre-Closing Tax Period, (ii) use of an improper method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date (whether pursuant to Section 481 of the Code, Section 263A of the Code, or otherwise)Date, (iiiii) method of accounting that defers the recognition of income to any period ending after the Closing Date, (iv) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local, provincial, local or non-U.S. Tax Law) executed entered into with any Tax Authority on or prior to the Closing Date, (iiiv) installment sale or open transaction disposition made on or prior to the Closing Date, (vi) deferred intercompany transactions transaction or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of applicable U.S. state, local, provincial, local or non-U.S. Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, or (vvii) prepaid amount received or deferred revenue accrued on or prior to the Closing Date, (vi) deferred revenue accrued prior to the Closing Date, (vii) deferred gains arising prior to the Closing Date, (viii) election under Section 108(i) of the Code (or any corresponding provision of applicable state, local, provincial, or non-U.S. Law), (ix) except to the extent accurately reflected as Debt hereunder, “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) or “subpart F income” within the meaning of Section 951 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law) of any Acquired Company (or any Affiliate of any Acquired Company) attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date (i.e., measured as though the Closing Date were the last day of the applicable taxable period), or (x) any election under Section 965(h) of the Code.
(k) The Company is not, and has never been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract, and . the Company is not and has never been a party to or bound by any offer in compromise, closing agreement, gain recognition agreement or other agreement with any Governmental Body with respect to Taxes. No Tax ruling has been applied for or received by the Company.
(l) Except as set forth on Schedule 4.8(l) of the Company Disclosure Schedules, no Acquired Company has or will have any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, operation of Law or otherwise.
(m) Except as set forth on Schedule 4.8(m) of the Company Disclosure Schedules, no Acquired Company has ever been included in (or includible in) any “affiliated group” within the meaning of Section 1504(a)(1) of the Code (other than an “affiliated group” within the meaning of Section 1504(a)(1) of the Code of which the Company is the common parent of such “affiliated group” within the meaning of Section 1504(a)(1) of the Code).
(n) The U.S. federal income tax classification of each Acquired Company is set forth on Schedule 4.8(n) of the Company Disclosure Schedules.
(o) No Acquired Company is or ever has had any branchhas, agencyin the prior three-year period, permanent establishment, or other taxable presence outside of the country where it is organized.
(p) No Acquired Company has either distributed stock of another Person, Person or has had its stock distributed by another Person, Person in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(qn) No Acquired Company ever has entered into or participated owns any equity in any transaction that is described as non-U.S. corporation.
(xo) No Acquired Company or Seller Party (with respect to an Acquired Company) has taken a “reportable transaction” within reporting position on a Tax Return that, if not sustained, could be reasonably likely to give rise to a penalty for substantial understatement of U.S. federal income Tax under Section 6662 of the meaning of Treasury Regulations Section 1.6011-4(b)(1) Code (or any similar provision of U.S. state, local, or non-U.S. Law) or (y) a “tax shelter” within the meaning of Section 6662 of the Code or the Treasury Regulations promulgated thereunder (or any similar provision of state, local, local or non-U.S. Law).
(rp) Each reference to any No Acquired Company is or has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in this Section 4.8 shall be deemed to include, 897(c)(l)(A)(ii) of the Code.
(q) All Acquired Companies are properly classified as partnerships or disregarded entities for U.S. federal income tax purposes and shall include, (x) each no Acquired Company nor any Person that merged with and intoon behalf of, or liquidated intowith respect to, such Acquired Company and has made or filed (yor will make or file on or before the Closing Date) each Person an election for which such Acquired Company has any successor or transferee liability to be treated otherwise.
(whether by Contract, Lawr) No Seller Party is a non-U.S. person subject to withholding under Section 1445 of the Code and the regulations promulgated thereunder. No representations are made concerning the amount of, or otherwise)limitations on the use of, an Acquired Company’s net operating losses or capital losses that are attributable to a Pre-Closing Tax Period, in each case for Tax periods beginning after the Closing Date.
Appears in 1 contract
8Taxes. (a) Each of the Acquired Companies has timely filed with the appropriate Governmental Body all material All Tax Returns required to be have been filed by it, or with respect to, such entity. All such material Tax Returns on behalf of the Company through the date of this Agreement have been properly completed timely filed in compliance accordance with all applicable legal requirements Laws (pursuant to an extension of time or otherwise) and are true, correct and complete in all material respects. No Acquired The Company is currently the beneficiary has provided to Parent true, correct and complete copies of any extension of time within which to file any all Tax Return other than extensions automatically available by statute. Returns.
(b) All material Taxes due and owing by the Acquired Companies (whether or not shown on any Tax Return) have been timely paid and the Acquired Companies have adequately reserved in the Financial Statements in accordance with GAAP for all material Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the dates thereof. Since the end of the most recent period covered by the Financial Statements, the Acquired Companies have not incurred any liability for Taxes outside the Ordinary Course of Business. The Acquired Companies have complied in all material respects with applicable Tax Laws.
(c) All material Taxes (including, without limitation, all Canadian withholding taxes) required to be withheld by any Acquired Company have been withheld and have been (or will be) duly and timely paid to the proper Governmental Body. Each Acquired Company has properly requested, received and retained any material exemption certificates and other documentation supporting any claimed exemption or waiver of Taxes on sales or other transaction as to which the Acquired Companies otherwise would have been obligated to collect or withhold Taxes. Each Acquired Company has materially complied with all information reporting and record keeping requirements under all applicable Tax Laws, including retention and maintenance of required records with respect thereto.
(d) Except as set forth on Schedule 4.8(d) of the Company Disclosure Schedules, there is no pending or, to the knowledge of the Acquired Companies, threatened disputes, audits, investigations, examinations, proceedings, demands, causes of action, suits, arbitrations, inquiries, hearings, requests for information, filing, claim, proposed adjustments, assessments or other actions or proceedings (whether administrative, regulatory or otherwise) by any Governmental Body concerning any Tax liability of any Acquired Company is currently in progress. There are no matters under discussion with any Governmental Body with respect to the liability of an Acquired Company with respect to Taxes that would reasonably be expected to result in an additional liability for Taxes with respect to the Acquired Companies. All deficiencies claimed, proposed or asserted or assessments made against any Acquired Company by any Governmental Body have been fully paid (or will be timely paid prior to the Closing (if the Closing occurs)) and no rationale underlying a claim for Taxes has been asserted previously by any Governmental Body that reasonably could be expected to be asserted in any other period and that likely would result in additional liability for Taxes with respect to any Acquired Company.
(e) Each Acquired Company is in material compliance with all applicable transfer pricing Law and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of such Acquired Company, and the prices charged, paid, or incurred between (or among) each of the Acquired Companies and their respective Affiliates, or any combination thereof, for any property or services (or for the use of money or any other property) are arm’s-length prices for purposes of all applicable transfer pricing Law (and no other material consideration has been charged, paid, or incurred for any such property or services other than those documented prices that were charged, paid, and incurred for such property and services).
(f) No written claim has ever been made by a Governmental Body in a jurisdiction where the Acquired Companies do Company does not file Tax Returns that it is or may be subject to taxation or to a requirement to file Tax Return Returns in that an Acquired jurisdiction.
(c) All Taxes due and owing by or on behalf of the Company is (whether or not shown on any Tax Return) have been or will be timely paid in full through the date of this Agreement.
(d) The Company has accrued on the Company Financial Statements in accordance with GAAP all liabilities for unpaid Taxes through the date of the applicable Company Financial Statements.
(e) The amount of any Taxes paid by the Company, together with all amounts accrued as liabilities for Taxes (including Taxes accrued as currently payable but excluding any accrual to reflect timing differences between book and Tax income) on the books of the Company, are adequate based on the tax rates and applicable Laws in effect to satisfy all accrued liabilities for Taxes of the Company in any jurisdiction.
(f) The Company has withheld all amounts of Taxes required to file a be withheld from its employees, agents, contractors, creditors, stockholders, members or other equityholders and third parties and timely remitted such amounts to the proper Governmental Body and filed all federal, state, local and foreign Tax Return Returns and reports with respect to employee income Tax withholding, social security, unemployment, and other similar Taxes, all in compliance with the withholding provisions of the Code, or pay Tax in such jurisdictionany prior provision of the Code and other applicable Laws.
(g) Except as set forth The Company has collected all sales, value-added and use Taxes required to be collected, and have remitted, or will remit on Schedule 4.8(g) of the Company Disclosure Schedulesa timely basis, the Acquired Companies have not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect such amounts to the assessment appropriate Governmental Body (or collection of any Taxhave been furnished properly completed exemption certificates and have maintained all such records and supporting documents, nor has any request been made in writing for any such extension or waiver other than extensions automatically available by statute. There is no power of attorney each case, in effect or in force material compliance with respect to Taxes, or any matter related to Taxes, of any Acquired Companyall applicable sales and use Tax statutes and regulations).
(h) No claims have been asserted and no proposals or deficiencies for any Taxes of the Company have been asserted, proposed or, to the Knowledge of the Company, threatened, and no Legal Proceeding, audit, examination or investigation of any Tax Return of the Company is currently underway, pending or, to the Knowledge of the Company, threatened. There have been no examinations or audits of any Tax Return of the Company. The Company has provided to Parent true, correct and complete copies of all audit reports, correspondence with Tax authorities and similar documents (to which the Company has access) relating to the Tax Returns of the Company.
(i) All Tax deficiencies asserted by a Governmental Body against the Company have been paid in full, accrued on the books of the Company, as applicable, or finally settled.
(j) There are no liens outstanding waivers or agreements between any Governmental Body and the Company for the extension of time for the assessment of any Taxes upon or deficiency thereof, nor are there any requests for rulings, outstanding subpoenas or requests for information, notices of proposed reassessment of any property owned or asset of leased by the Company or any Acquired other matter pending between the Company and any Governmental Body.
(k) There are no Liens (other than Permitted Liens)) for Taxes with respect to the Company or the assets or properties of the Company, nor is there any Lien that is pending or, to the Knowledge of the Company, threatened.
(il) No Acquired The Company has (i) deferred any payment of Taxes (that would otherwise be due) through any automatic extension or other grant of relief provided by not been a Pandemic Response Law, except to the extent accurately reflected as Debt hereunder or (ii) sought any other Tax benefit from any applicable Governmental Body related to any governmental response to COVID-19 (including, without limitation, any benefit provided or authorized by a Pandemic Response Law).
(j) Except as set forth on Schedule 4.8(j) of the Company Disclosure Schedules, no Acquired Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in or use member of an improper method “affiliated group” of accounting for a taxable period ending on or prior to the Closing Date companies (whether pursuant to Section 481 of the Code, Section 263A of the Code, or otherwise), (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) executed on or prior to the Closing Date, (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, (v) prepaid amount received on or prior to the Closing Date, (vi) deferred revenue accrued prior to the Closing Date, (vii) deferred gains arising prior to the Closing Date, (viii) election under Section 108(i) of the Code (or any corresponding provision of applicable state, local, provincial, or non-U.S. Law), (ix) except to the extent accurately reflected as Debt hereunder, “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) or “subpart F income” within the meaning of Section 951 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law) of any Acquired Company (or any Affiliate of any Acquired Company) attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date (i.e., measured as though the Closing Date were the last day of the applicable taxable period), or (x) any election under Section 965(h) 1504 of the Code) filing a consolidated federal income tax return (other than a group, the common parent of which was the Company).
(km) The Company is not, and has never been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract, and the Company is not and (i) has never been a party to member of an affiliated group filing a consolidated federal income Tax Return or bound by any offer in compromisesimilar group for deferral, closing agreementstate, gain recognition agreement local or other agreement with any Governmental Body with respect to Taxes. No foreign Tax ruling has been applied for or received by the Company.
purposes, (lii) Except as set forth on Schedule 4.8(l) of the Company Disclosure Schedules, no Acquired Company has or will does not have any liability for the Taxes of any other Person under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contractwritten or oral contract (other than pursuant to any contracts the primary purpose of which is not the sharing of or indemnification for Taxes), whether express or implied, operation of Law or otherwise.
otherwise and (miii) Except has never been a party to any joint venture, partnership or other arrangement that is treated as set forth on Schedule 4.8(m) of the Company Disclosure Schedules, no Acquired Company has ever been included in (or includible in) any “affiliated group” within the meaning of Section 1504(a)(1) of the Code (other than an “affiliated group” within the meaning of Section 1504(a)(1) of the Code of which the Company is the common parent of such “affiliated group” within the meaning of Section 1504(a)(1) of the Code)a partnership for Tax purposes.
(n) The U.S. federal income tax classification of each Acquired Company is set forth on Schedule 4.8(n) not a party to or bound by any Tax allocation, Tax indemnification or Tax sharing agreement (other than any such agreement the primary purpose of which is not the Company Disclosure Schedulessharing of or indemnification for Taxes).
(o) No Acquired The Company has not made any payments, is or ever has had not obligated to make any branch, agency, permanent establishment, or other taxable presence outside payments and is not a party to any Contract that would obligate it to make any payments that will not be deductible under Section 280G of the country where it is organizedCode (or any similar provision of national, provincial, territorial, state, local or foreign Law).
(p) No Acquired The Company has distributed not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax free treatment under Section 355 of another Personthe Code (i) in the two years prior to the date of this Agreement, or has had its stock distributed by another Person, (ii) in a transaction that was purported distribution which would otherwise constitute part of a “plan” or intended to be governed in whole or in part by “series of related transactions” (within the meaning of Section 355 or Section 361 355(e) of the Code) in connection with the transactions contemplated by this Agreement.
(q) No Acquired Section 2.8(q) of the Disclosure Schedule sets forth a reasonable estimate of the amount of federal net operating loss carryovers of the Company ever as of January 1, 2019.
(r) To the Knowledge of the Company, the Company has entered into no net operating losses or participated in any transaction that is described as (x) a “reportable transaction” within other tax attributes presently subject to limitation under Sections 382, 383, 384 of the meaning of Treasury Regulations Section 1.6011-4(b)(1) Code or the federal consolidated return regulations (or any corresponding or similar provision of state, local or foreign income Tax law).
(s) The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period after the date of this Agreement as a result of any (i) adjustment in taxable income for any tax period (or portion thereof) pursuant to Section 481 of the Code or any comparable provision under state or foreign tax Laws as a result of a change in a method of accounting occurring before the date of this Agreement, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of national, provincial, territorial, state, local or foreign income Tax Law) executed on or prior to the date of this Agreement, (iii) installment sale or open transaction disposition made on or prior to the date of this Agreement, (iv) prepaid amount received on or prior to the date of this Agreement, (v) intercompany transaction or excess loss account described in U.S. Treasury Regulations under Section 1502 of the U.S. Tax Code (or any corresponding or similar provision of state, local, or non-U.S. Lawincome Tax law), (vi) income inclusion pursuant to Section 951 of the Code with respect to any interest held in a “controlled foreign corporation” (as that term is defined in Section 957 of the Code) on or before the Closing Date, (vii) any installment of the “net tax liability” described in Section 965(h)(1) of the Code after December 31, 2017, or (yviii) change in method of accounting for a “tax shelter” Tax period ending on or prior to the Closing Date.
(t) The Company has not, directly or indirectly, transferred property to or acquired property from a Person with whom it was not dealing at arm’s length for consideration other than consideration equal to the fair market value of the property at the time of the disposition or acquisition thereof and has complied in all material respects with all material transfer pricing rules and requirements, including any disclosure, reporting and other similar requirements under Section 482 of the Code (or any corresponding provision of any state, local or foreign Tax Law).
(u) The Company has not been a United States real property holding corporation within the meaning of Section 6662 897(c)(2) of the Code or during the Treasury Regulations promulgated thereunder (or any similar provision applicable period specified in Section 897(c)(1)(A)(ii) of state, local, or non-U.S. Law)the Code.
(rv) Each reference to any Acquired The Company in this Section 4.8 shall be deemed to include(i) does not have a permanent establishment, and shall includeoffice or other fixed place of business, (x) each Person that merged with and into, or liquidated into, such Acquired Company and (y) each Person for which such Acquired Company has any successor or transferee liability (whether by Contract, Law, or otherwise).and
Appears in 1 contract
Samples: Agreement and Plan of Merger (Vickers Vantage Corp. I)
8Taxes. (a) Each The Company and each of the Acquired Companies has its Subsidiaries have timely filed with the appropriate Governmental Body all material Tax Returns that the Company and each of its Subsidiaries were required to be filed by itfile, or with respect toand, except as set forth in Section 2.8 of the Company Disclosure Schedule, all such entity. All such material Tax Returns have been properly completed in compliance with applicable legal requirements and are true, were correct and complete in all material respects. No Acquired The Company is currently and each of its Subsidiaries have paid (or caused to be paid) on a timely basis all Taxes due and payable by the beneficiary of any extension of time within which to file any Tax Return other than extensions automatically available by statute. Company and/or its Subsidiaries.
(b) All material Taxes due and owing by As of the Acquired Companies (whether date of this Agreement, no examination or not shown on audit of any Tax Return) have , or other Action in respect of any Tax, of the Company or any of its Subsidiaries by any Governmental Entity is currently in progress or has been timely paid proposed or threatened in writing or, to the Knowledge of the Company, orally, nor has any material adjustment with respect to any Tax Return or material claim for any additional Tax been received from a Governmental Entity by the Company or any of its Subsidiaries that is still in progress. There are no Liens for Taxes on any of the assets or properties of the Company or any of its Subsidiaries, other than Liens for Taxes that are being contested in good faith through appropriate proceedings and for which the Acquired Companies have adequately reserved most recent financial statements contained in the Financial Statements Company SEC Reports reflect an adequate reserve in accordance with GAAP for all material Taxes GAAP.
(whether or not shown on any Tax Returnc) that have accrued but are not yet due or payable as of the dates thereof. Since the end of the most recent period covered by the Financial Statements, the Acquired Companies have not incurred any liability for Taxes outside the Ordinary Course of Business. The Acquired Companies Company and its Subsidiaries have complied in all material respects with applicable Tax Laws.
(c) All Laws for the withholding of Taxes and have timely withheld and paid over to the appropriate Governmental Entity all amounts of material Taxes (including, without limitation, all Canadian withholding taxes) required to be withheld by any Acquired Company have been withheld and have been (or will be) duly and timely paid to the proper Governmental Body. Each Acquired Company has properly requested, received and retained any material exemption certificates and other documentation supporting any claimed exemption or waiver of Taxes on sales or other transaction as to which the Acquired Companies otherwise would have been obligated to collect or withhold Taxes. Each Acquired Company has materially complied with all information reporting and record keeping requirements under all applicable Tax Laws, including retention and maintenance of required records with respect theretoover.
(d) Except as set forth on Schedule 4.8(d) There is no outstanding waiver or extension of any applicable statute of limitations for the assessment or collection of Taxes from the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is presently contesting any material Tax liability of the Company Disclosure Schedules, there is no pending or, to the knowledge of the Acquired Companies, threatened disputes, audits, investigations, examinations, proceedings, demands, causes of action, suits, arbitrations, inquiries, hearings, requests for information, filing, claim, proposed adjustments, assessments or other actions or proceedings (whether administrative, regulatory or otherwise) by its Subsidiaries before any Governmental Body concerning any Tax liability of any Acquired Company is currently in progress. There are no matters under discussion with any Governmental Body with respect to the liability of an Acquired Company with respect to Taxes that would reasonably be expected to result in an additional liability for Taxes with respect to the Acquired Companies. All deficiencies claimed, proposed or asserted or assessments made against any Acquired Company by any Governmental Body have been fully paid (or will be timely paid prior to the Closing (if the Closing occurs)) and no rationale underlying a claim for Taxes has been asserted previously by any Governmental Body that reasonably could be expected to be asserted in any other period and that likely would result in additional liability for Taxes with respect to any Acquired CompanyEntity.
(e) Each Acquired Neither the Company is nor any of its Subsidiaries has any material liability for any Taxes of any Person (other than the Company and its Subsidiaries) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of Tax law in material compliance with all applicable transfer pricing Law and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of such Acquired Company, and the prices charged, paidany jurisdiction) or as a transferee or successor, or incurred between (ii) pursuant to any Tax sharing or among) each of the Acquired Companies and their respective Affiliates, Tax indemnification agreement or any combination thereof, for any property or services other similar agreement (or for the use of money or any other property) are arm’s-length prices for purposes of all applicable transfer pricing Law (and no other material consideration has been charged, paid, or incurred for any such property or services other than those documented prices pursuant to commercial agreements or arrangements entered into in the Ordinary Course of Business that were charged, paid, and incurred for such property and servicesare not primarily related to Taxes). .
(f) No claim has ever closing agreements, private letter rulings or similar agreements or rulings have been made entered into or issued by a any Governmental Body in a jurisdiction where Entity responsible for Taxes within the Acquired Companies do not file a Tax Return last five years with respect to the Company or any of its Subsidiaries, and no such agreements or rulings have been applied for by the Company or any of its Subsidiaries that an Acquired Company is required to file a Tax Return or pay Tax in such jurisdictionare currently pending.
(g) Except as set forth on Schedule 4.8(g) of Neither the Company Disclosure Schedules, nor any of its Subsidiaries has entered into any “reportable transaction” within the Acquired Companies have not waived any statute meaning of limitations in respect of Taxes or agreed to any extension of time with respect to the assessment or collection of any Tax, nor has any request been made in writing for any such extension or waiver other than extensions automatically available by statute. There is no power of attorney in effect or in force with respect to Taxes, or any matter related to Taxes, of any Acquired CompanyTreasury Regulation Section 1.6011-4(b).
(h) There are no liens Neither the Company nor any of its Subsidiaries constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for Taxes upon tax-free treatment under Section 355 of the Code (or any property similar provision of state, local or asset of any Acquired Company (other than Permitted Liens)non-U.S. law) in the two years prior to the date hereof.
(i) No Acquired Company claim has (i) deferred any payment of Taxes (that would otherwise be due) through any automatic extension or other grant of relief provided been made in writing by a Pandemic Response Law, except Governmental Entity in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to the extent accurately reflected as Debt hereunder or (ii) sought any other Tax benefit from any applicable Governmental Body related to any governmental response to COVID-19 (including, without limitation, any benefit provided or authorized taxation by a Pandemic Response Law)that jurisdiction.
(j) Except as set forth on Schedule 4.8(j) of the Company Disclosure Schedules, no Acquired The Company will not be required to include any material item of income in, or to exclude any material item of deduction deductions from, taxable income for from any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in or use of an improper the method of accounting for a taxable period ending on or prior to the Closing Date (whether pursuant to Section 481 of the Code, Section 263A of the Code, or otherwise)accounting, (ii) “closing agreement” , as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) executed on or prior to the Closing Dateforeign law), (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law), (iv) installment sale or open transaction disposition made on or prior to before the Closing Date, or (viv) prepaid amount or deferred revenue received on or prior to before the Closing Date, (vi) deferred revenue accrued prior to the Closing Date, (vii) deferred gains arising prior to the Closing Date, (viii) election under Section 108(i) of the Code (or any corresponding provision of applicable state, local, provincial, or non-U.S. Law), (ix) except to the extent accurately reflected as Debt hereunder, “global intangible low-taxed income” within the meaning of Section 951A of the Code (or any corresponding or similar provision of state, local, provincial, or non-U.S. Law) or “subpart F income” within the meaning of Section 951 of the Code (or any corresponding or similar provision of applicable state, local, provincial, or non-U.S. Law) of any Acquired Company (or any Affiliate of any Acquired Company) attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date (i.e., measured as though the Closing Date were the last day of the applicable taxable period), or (x) any election under Section 965(h) of the Code.
(k) The Company is not, and has never been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract, and the Company is not and has never been a party to or bound by any offer in compromise, closing agreement, gain recognition agreement or other agreement with any Governmental Body with respect to Taxes. No Tax ruling has been applied for or received by the Company.
(l) Except as set forth on Schedule 4.8(l) Each of the Company Disclosure Schedules, no Acquired Company and its Subsidiaries has or will have any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), been treated as a transferee or successor, by Contract, operation of Law or otherwise.
(m) Except as set forth on Schedule 4.8(m) of the Company Disclosure Schedules, no Acquired Company has ever been included in (or includible in) any “affiliated group” within the meaning of Section 1504(a)(1) of the Code (other than an “affiliated group” within the meaning of Section 1504(a)(1) of the Code of which the Company is the common parent of such “affiliated group” within the meaning of Section 1504(a)(1) of the Code).
(n) The corporation for U.S. federal income tax classification of each Acquired Company is set forth on Schedule 4.8(n) of the Company Disclosure Schedulespurposes since its respective formation.
(o) No Acquired Company is or ever has had any branch, agency, permanent establishment, or other taxable presence outside of the country where it is organized.
(p) No Acquired Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(q) No Acquired Company ever has entered into or participated in any transaction that is described as (x) a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(1) (or any similar provision of state, local, or non-U.S. Law) or (y) a “tax shelter” within the meaning of Section 6662 of the Code or the Treasury Regulations promulgated thereunder (or any similar provision of state, local, or non-U.S. Law).
(r) Each reference to any Acquired Company in this Section 4.8 shall be deemed to include, and shall include, (x) each Person that merged with and into, or liquidated into, such Acquired Company and (y) each Person for which such Acquired Company has any successor or transferee liability (whether by Contract, Law, or otherwise).
Appears in 1 contract
Samples: Merger Agreement (Cynergistek, Inc)
