Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed. (ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency. (iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable. (iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements. (v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency. (vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries. (vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date. (viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries). (ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code. (x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law. (xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 3 contracts
Samples: Merger Agreement (Omnicare Inc), Merger Agreement (CVS HEALTH Corp), Merger Agreement (CVS HEALTH Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount Neither Mesa nor any of Taxes its Subsidiaries has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Tax Authorities of any nation, state or locality (and no such audit is pending or contemplated) nor has the Company nor Mesa or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that relating to any issue which could reasonably be expected to materially affect the Company Tax liability of Mesa or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company Mesa nor any Company Subsidiary of its Subsidiaries (A) has entered into an agreement or waiver or requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of Mesa or any of its Subsidiaries or (B) is presently contesting any material the Tax liability of the Company Mesa or any Company Subsidiary of its Subsidiaries before any court, tribunal or agencyGovernmental Entity.
(iii) All material Neither Mesa nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under Applicable Law with respect to Taxes for any Taxable period for which the statute of limitations has not expired (other than a group of which Mesa and/or its Subsidiaries are the only members).
(iv) Taxes that the Company Mesa or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over timely remitted to the proper authorities to the extent due and payable.
(iv) The Company ; and Mesa and each of its Subsidiaries have reported such withheld amounts to the Company Subsidiaries has complied in all material respects with all information reporting (appropriate Taxing Authority and related withholding) and record retention requirementsto each such employee, independent contractor, creditor, stockholder or any other third party, as required under Applicable Law.
(v) Neither the Company nor No claim has ever been made by any Company Subsidiary has waived Taxing Authority in a jurisdiction where Mesa or its Subsidiaries does not file Tax Returns that Mesa or any statute of limitations with respect its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due Tax sharing, allocation, indemnification or similar agreements in effect as between Mesa or any predecessor or Affiliate thereof and payable) on any of the assets of the Company other party under which Mesa or any of the Company Subsidiariesits Subsidiaries could be liable for any Taxes or other claims of any party.
(vii) None Mesa and each of its Subsidiaries has delivered or made available to Armada copies of each of the Company Tax Returns for income Taxes filed on behalf of Mesa and the Company its Subsidiaries is a party to or bound by any closing agreementsince January 1, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date2011.
(viii) Neither the Company Mesa nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company its Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable Taxable income in for any taxable Taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale of the following that occurred or open transaction exists on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to : (a) a “closing agreement” as described in Section 108(i) 7121 of the Code (or any corresponding or similar provision of state, local or foreign non-U.S. income Tax law), (b) made with respect an installment sale or open transaction, (c) a prepaid amount, (d) an intercompany item under Treasury Regulation section 1.1502-13 or an excess loss account under Treasury Regulation 1.1502-19, or (e) change in the accounting method of Mesa or any of its Subsidiaries pursuant to Section 481 of the Code or any taxable similar provision of the Code or the corresponding Tax laws of any nation, state or locality.
(ix) During the five-year period ending on the date of this Agreement, neither Mesa nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(x) Neither Mesa nor any of its Subsidiaries has engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).
(xi) Neither Mesa nor any of its Subsidiaries has a permanent establishment in any foreign country.
(xii) Neither Mesa nor any Subsidiary has requested, received or executed with any Taxing Authority any ruling or binding agreement which could have a material effect in a post-Closing period.
(xiii) Neither Mesa nor any Mesa Subsidiary has any actual or potential liability for any Tax obligation of any taxpayer other than Mesa and Mesa Subsidiaries (including without limitation any affiliated group of corporations or other entities that included Mesa or any Mesa Subsidiary during a prior period).
(xiv) Neither Mesa nor any Mesa Subsidiary: (i) is a “consenting corporation” within the meaning of Section 341(f) of the Code, and none of the assets of Mesa or any Mesa Subsidiary are subject to an election under Section 341(f) of the Code; (ii) 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 Section 897(c)(l)(A)(ii) of the Code; (iii) has made any payments, is obligated to make any payments, or is a party to any agreement that could obligate it to make any payments that may be treated as an “excess parachute payment” under Section 280G of the Code; (iv) has any actual or potential liability for any Taxes of any person (other than Mesa and Mesa Subsidiaries) under Treasury Regulation Section 1.1502 6 (or any similar provision of federal, state, local, or foreign law), or as a transferee or successor, by contract, or otherwise; or (v) is or has been required to make a basis reduction pursuant to Treasury Regulation Section 1.1502-20(b) or Treasury Regulation Section 1.337(d)-2(b).
(xv) None of the assets of Mesa or any Mesa Subsidiary: (i) is property that is required to be treated as being owned by any other person pursuant to the provisions of former Section 168(f)(8) of the Code; (ii) is “tax-exempt use property” within the meaning of Section 168(h) of the Code; or (iii) directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code.
(xvi) Except as disclosed in Schedule 3.12(c)(xvi) of the Mesa Disclosure Letter, no state or federal “net operating loss” of Mesa or any of its Subsidiaries determined as of the Closing Date is subject to limitation on its use pursuant to Section 382 of the Code or comparable provisions of state law as a result of any “ownership change” within the meaning of Section 382(g) of the Code or comparable provisions of any state law occurring prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Armada Oil, Inc.), Asset Purchase Agreement (Mesa Energy Holdings, Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount (A) None of Taxes has been proposed, asserted or assessed against the Company Gentek Holdings or any of the Company its Subsidiaries and remains unpaid, except for such deficiencies that are being contested, is or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have has been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor locality, has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority notification that such an audit is contemplated or examination is pendingpending and, or that to the Company knowledge of Gentek Holdings or any of the Company its Subsidiaries, no such audit is contemplated or pending; and (B) none of Gentek Holdings or any of its Subsidiaries was required to file has received any Tax Return that was not filednotices, reassessments or requests for examination from any taxing authority.
(ii) Neither None of Gentek Holdings or any of its Subsidiaries, as of the Company nor Closing Date, (A) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any Company Subsidiary statute of limitations relating to the assessment, payment or collection of Taxes of Gentek Holdings or any of its Subsidiaries that has not expired, (B) is presently contesting any material the Tax liability of the Company Gentek Holdings or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency, (C) has granted a power-of-attorney relating to Tax matters to any person or (D) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of Gentek Holdings or any of its Subsidiaries.
(iii) All material Taxes that the Company None of Gentek Holdings or any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Tax Return provided for under the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each law of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor United States, any Company Subsidiary has waived foreign jurisdiction or any statute of limitations state or locality with respect to Taxes nor agreed to for any extension taxable period for which the statute of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes limitations has not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement expired (other than such an agreement a group of which Gentek Holdings and one or arrangement exclusively between or among more of its Subsidiaries are the Company and the Company Subsidiariesonly members).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Associated Materials Inc), Stock Purchase Agreement (AMH Holdings, Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount Neither Armada nor any of Taxes its Subsidiaries has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Tax Authorities of any nation, state or locality (and no such audit is pending or contemplated) nor has the Company nor Armada or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that relating to any issue which could reasonably be expected to materially affect the Company Tax liability of Armada or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company Armada nor any Company Subsidiary of its Subsidiaries (A) has entered into an agreement or waiver or requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of Armada or any of its Subsidiaries or (B) is presently contesting any material the Tax liability of the Company Armada or any Company Subsidiary of its Subsidiaries before any court, tribunal or agencyGovernmental Entity.
(iii) All material Neither Armada nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under Applicable Law with respect to Taxes for any Taxable period for which the statute of limitations has not expired (other than a group of which Armada and/or its Subsidiaries are the only members).
(iv) Taxes that the Company Armada or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company payable and Armada and each of its Subsidiaries have reported such withheld amounts to the Company Subsidiaries has complied in all material respects with all information reporting (appropriate Taxing Authority and related withholding) and record retention requirementsto each such employee, independent contractor, creditor, stockholder or any other third party, as required under Applicable Law.
(v) Neither the Company nor No claim has ever been made by any Company Subsidiary has waived Taxing Authority in a jurisdiction where Armada or its Subsidiaries does not file Tax Returns that Armada or any statute of limitations with respect its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due Tax sharing, allocation, indemnification or similar agreements in effect as between Armada or any predecessor or Affiliate thereof and payable) on any of the assets of the Company other party under which Armada or any of the Company Subsidiariesits Subsidiaries could be liable for any Taxes or other claims of any party.
(vii) None Armada and each of its Subsidiaries has delivered or made available to Mesa copies of each of the Company Tax Returns for income Taxes filed on behalf of Armada and the Company its Subsidiaries is a party to or bound by any closing agreementsince January 1, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date2011.
(viii) Neither the Company Armada nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company its Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable Taxable income in for any taxable Taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale of the following that occurred or open transaction exists on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to : (a) a “closing agreement” as described in Section 108(i) 7121 of the Code (or any corresponding or similar provision of state, local or foreign non-U.S. income Tax law), (b) made with respect an installment sale or open transaction, (c) a prepaid amount, (d) an intercompany item under Treasury Regulation section 1.1502-13 or an excess loss account under Treasury Regulation 1.1502-19, or (e) change in the accounting method of Armada or any of its Subsidiaries pursuant to Section 481 of the Code or any taxable similar provision of the Code or the corresponding Tax laws of any nation, state or locality.
(ix) During the five-year period ending on the date of this Agreement, neither Armada nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(x) Neither Armada nor any of its Subsidiaries has engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).
(xi) Neither Armada nor any of its Subsidiaries has a permanent establishment in any foreign country.
(xii) Neither Armada nor any Subsidiary has requested, received or executed with any Taxing Authority any ruling or binding agreement which could have a material effect in a post-Closing period.
(xiii) Neither Armada nor any Armada Subsidiary has any actual or potential liability for any Tax obligation of any taxpayer other than Armada and Armada (including without limitation any affiliated group of corporations or other entities that included Armada or any Armada Subsidiary during a prior period).
(xiv) Neither Armada nor any Armada Subsidiary: (i) is a “consenting corporation” within the meaning of Section 341(f) of the Code, and none of the assets of Armada or any Armada Subsidiary are subject to an election under Section 341(f) of the Code; (ii) 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 Section 897(c)(l)(A)(ii) of the Code; (iii) has made any payments, is obligated to make any payments, or is a party to any agreement that could obligate it to make any payments that may be treated as an “excess parachute payment” under Section 280G of the Code; (iv) has any actual or potential liability for any Taxes of any person (other than Armada and Armada Subsidiaries) under Treasury Regulation Section 1.1502 6 (or any similar provision of federal, state, local, or foreign law), or as a transferee or successor, by contract, or otherwise; or (v) is or has been required to make a basis reduction pursuant to Treasury Regulation Section 1.1502-20(b) or Treasury Regulation Section 1.337(d)-2(b).
(xv) None of the assets of Armada or any Armada Subsidiary: (i) is property that is required to be treated as being owned by any other person pursuant to the provisions of former Section 168(f)(8) of the Code; (ii) is “tax-exempt use property” within the meaning of Section 168(h) of the Code; or (iii) directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code.
(xvi) No state or federal “net operating loss” of Armada or any of its Subsidiaries determined as of the Closing Date is subject to limitation on its use pursuant to Section 382 of the Code or comparable provisions of state law as a result of any “ownership change” within the meaning of Section 382(g) of the Code or comparable provisions of any state law occurring prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mesa Energy Holdings, Inc.), Asset Purchase Agreement (Armada Oil, Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an any audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality and no such audit or other examination is pending or, to the Company's knowledge, contemplated, nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of its Subsidiaries received any notices from any taxing authority relating to any issue which could materially affect the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agencyof its Subsidiaries.
(iiii) Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only the Company and any Subsidiaries of the Company) provided for under the Laws of any jurisdiction or any state or locality with respect to Taxes, for any taxable period for which the statute of limitations has not expired.
(ii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdershareholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iii) There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Acquiror, the Company or any of its Subsidiaries could be liable for any Taxes or other claims of any party.
(iv) The Company and each No indebtedness of the Company or any of its Subsidiaries has complied in all material respects with all information reporting consists of “corporate acquisition indebtedness” within the meaning of Section 279 of the Code or bears interest that is otherwise nondeductible pursuant to Section 163 of the Code. PALOALTO 66463 v1 (and related withholding2K) and record retention requirements.-33-
(v) Neither the Company nor any Company Subsidiary of its Subsidiaries has waived any statute of limitations with respect to Taxes nor applied for, been granted, or agreed to any extension accounting method change for which it shall be required to take into account any adjustment under Section 481 of time with respect the Code or any similar provision of the Code or the corresponding tax Laws of any nation, state or locality and neither the Company nor any of its Subsidiaries has any knowledge that the IRS or any other taxing authority has proposed or purported to a Tax assessment require any such adjustment or deficiencychange in accounting method, and the Company has no knowledge or belief that any such adjustment under Section 481 of the Code or the corresponding tax Laws of any nation, state or locality will be required of the Company or its Subsidiaries upon the completion of, or by reason of, the transaction contemplated by this Agreement.
(vi) Neither the Company nor any of its Subsidiaries, as of the Closing Date, (w) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or any of its Subsidiaries, (x) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any Governmental Entity, (y) has granted any power-of-attorney related to Tax matters to any Person, or (z) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company or any of its Subsidiaries.
(vii) Neither the Company nor any of its Subsidiaries is a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code at any time during the five-year period ending on the date hereof.
(viii) There are no liens for material Taxes (except Taxes not yet due and payable) Liens on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company its Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer that arose in compromise, or any other agreement connection with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
failure (viiior alleged failure) Neither the Company nor to pay any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)Taxes.
(ix) Neither the Company nor any of its Subsidiaries is or has been a party to any agreement that would require the Company or any of its Subsidiaries has been, within the past two years or otherwise as part to make any payment that would constitute an “excess parachute payment” for purposes of a “plan (or series of related transactions)” within the meaning of Section 355(e) Sections 280G and 4999 of the Code of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of that would not be deductible pursuant to Section 355(a)(1)(A162(m) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x) Neither No claim has ever been made by any taxing authority in a jurisdiction where the Company nor or any of its Subsidiaries does not file Tax Returns that the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of stateits Subsidiaries is, local or foreign Tax lawmay be, subject to taxation by that jurisdiction.
(xi) Neither the Company nor any of its Subsidiaries has engaged in a “confidential corporate tax shelter” within the Company Subsidiaries will be required to include any material item meaning of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i6111(d) of the Code (or any corresponding provision of stateand Treasury Regulations Section 301.6111-2, local or foreign Tax law) made with respect to any taxable period ending on or as in effect prior to the Closing Date, or, to the Knowledge enactment of the CompanyAmerican Jobs Creation Act of 2004, or a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b). (xii) (y) There are no deferred intercompany transactions between the Company and any intercompany transaction of its Subsidiaries or between its Subsidiaries and there is no excess loss account described in (within the meaning of Treasury Regulations Section 1502 of the Code 1.1502- PALOALTO 66463 v1 (or any corresponding provision of state, local or foreign Tax law).2K) -34-
Appears in 2 contracts
Samples: Merger Agreement (BWC Financial Corp), Merger Agreement (BWC Financial Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary of its Subsidiaries is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has locality, (ii) no such audit or other examination is pending, or to the Company’s Knowledge, threatened and (iii) neither the Company nor any of the Company its Subsidiaries has received any written notices notice from any Taxing Authority that such taxing authority relating to any issue which could have an audit or examination is pending, or that adverse effect on the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agencyof its Subsidiaries.
(iii2) All material Neither the Company nor any of its Subsidiaries (i) has entered into an agreement or waiver that will be in effect as of the Closing Date or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes that of the Company or any of its Subsidiaries, or (ii) is presently contesting the Tax liability of the Company or any of its Subsidiaries in any administrative or judicial proceeding.
(3) Neither the Company nor any of its Subsidiaries has been included in any affiliated group (within the meaning of Section 1504(a) of the Code) or any consolidated, combined or unitary group (under state or local law) of which the Company or any such Subsidiary is or has been a member (each, an “Affiliated Group”) with any Person (other than the Company or any current Subsidiary thereof) for any taxable period for which, to the Company’s Knowledge, the statute of limitations has not expired.
(4) All Taxes which the Company and each or any of its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv5) The Company and each of No claim has been made in writing by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsdoes not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi6) There are no liens for material Taxes (except Taxes not yet due and payable) on tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any of the assets of its Subsidiaries or any predecessor or affiliate thereof (other than Parent and its affiliates) and any other party under which Parent, Merger Subsidiary, the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Company’s Subsidiaries is a party to could be liable for any Taxes or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromiseother claims of, or could otherwise have any other agreement with liability or obligation to, any Taxing Authority, in each case that could have a materially adverse effect party after the Closing Date.
(viii7) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Company Subsidiaries is a party to Code or is bound by any similar provision of the Code or the corresponding Tax sharinglaws of any nation, allocation state or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)locality.
(ix) 8) Neither the Company nor any of its Subsidiaries is a party to any agreement, contract, arrangement or plan that would require (including as a result of the execution and delivery of this Agreement or the consummation of the Merger or any of the other transactions contemplated by this Agreement) the Company or any of its Subsidiaries has been, within the past two years or otherwise as part any affiliate thereof to make any payment that would constitute an “excess parachute payment” for purposes of a “plan (or series of related transactions)” within the meaning of Section 355(e) Sections 280G and 4999 of the Code of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of that would not be deductible pursuant to Section 355(a)(1)(A162(m) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x9) Neither The Company and each of its Subsidiaries have delivered to Parent and Merger Subsidiary true, complete and correct copies of each of the Company nor any Tax Returns for income Taxes filed on behalf of the Company and each of its Subsidiaries has participated in a “listed transaction” for the 2001, 2002 and 2003 tax years.
(10) There are no deferred intercompany transactions between the Company and any of its Subsidiaries or between the Company’s Subsidiaries and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) 19 with respect to the stock of the Company or any other of its Subsidiaries) which will or may result in the recognition of income upon the consummation of the transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawcontemplated by this Agreement.
(xi11) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made No Liens have been filed with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge Taxes of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (Subsidiary or any corresponding provision of state, local or foreign Tax law)Affiliated Group.
Appears in 2 contracts
Samples: Merger Agreement (E Piphany Inc), Merger Agreement (Ssa Global Technologies, Inc)
Other Tax Matters. (ia) No deficiency with respect Except as set forth on Schedule 2.13.3(a), since January 1, 2004, no Seller Company has been, nor to a material amount of Taxes has been proposedits knowledge will be, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Authorities of any nation, state or locality nor has with respect to the Company income or operations of the Business or the ownership of the Acquired Assets; and, to the knowledge of Parent, Seller Companies or any officer or employee of Seller Companies, no such audit is contemplated or pending; and neither Parent nor any of the Seller Company Subsidiaries has received any written notices from any Taxing Authority relating to any issue that such an audit could affect any Tax liability with respect to the income or examination is pending, or that the Company or any operations of the Company Subsidiaries was required to file any Tax Return that was not filedBusiness or the ownership of the Acquired Assets.
(iib) Neither the No Seller Company nor Parent has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any Company Subsidiary statute of limitations relating to the payment or collection of Taxes with respect to the income or operations of the Business or the ownership of the Acquired Assets that has not expired and is not presently contesting any material the Tax liability with respect to the income or operations of the Company Business or any Company Subsidiary the ownership of the Acquired Assets before any Taxing Authority or court, tribunal or agency.
(iiic) All material Taxes that the Company or any of the Company Subsidiaries is (or was) Seller Companies are required by Applicable Law law to withhold or collect with respect to the income or operations of the Business or the ownership of the Acquired Assets in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities Taxing Authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vid) There are no liens existing or, to Parent’s and Seller’s Companies’ knowledge, threatened Liens for material Taxes (upon the Acquired Assets or the Equity Interests except for Liens for current Taxes not yet due and payable.
(e) Neither Parent nor any Seller Company has received a written notice of a Claim made by any Taxing Authority in a jurisdiction where a Seller Company does not file Tax Returns with respect to the income or operations of the Business or the ownership of the Acquired Assets that a Seller Company is or may be subject to taxation by that jurisdiction with respect to the income or operations of the Business or the ownership of the Acquired Assets.
(f) There are no material security interests on any of the assets Acquired Assets that arose in connection with any failure (or alleged failure) to pay any Taxes.
(g) No Seller Company has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired. The basis of any depreciable assets, and the methods used in determining allowable depreciation (including cost recovery) of each Seller Company, are, to the best knowledge of Seller Companies, correct and in compliance with the Code.
(h) There are no tax sharing, allocation, indemnification or similar agreements in effect as between any Seller Company or any predecessor or Affiliate thereof and any other party (including Parent or any predecessors or Affiliates thereof) under which Purchaser or any Seller Company could be liable for any Taxes or other Claims of the Company Subsidiariesany party.
(viii) None of the Neither Parent nor any Seller Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)foreign person” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 1445 of the Code.
(xj) Neither the Company Parent nor any Seller Company has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code at any time during the five-year period ending on the date hereof.
(k) No indebtedness of any Seller Company Subsidiaries consists of “corporate acquisition indebtedness” within the meaning of Section 279 of the Code.
(l) No Seller Company has participated applied for, been granted, or agreed to any accounting method change for which such Seller Company will be required to take into account any adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(m) No Seller Company is a party to any agreement that would require Parent, such Seller Company or any Affiliate thereof to make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the Code.
(n) Seller Companies have delivered or made available to Purchaser copies of each of the Tax Returns for income Taxes filed on behalf of each Seller Company since January 1, 2006.
(o) Seller Companies have not engaged in a “listed reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law4(b).
(xip) Neither the No power of attorney has been granted by any Seller Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior matter relating to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described Taxes that is currently in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)force.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Modern Medical Modalities Corp), Asset Purchase Agreement (Modern Medical Modalities Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposedIn the past six years, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an any audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality and no such audit or other examination is pending, nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority taxing authority relating to any issue that such an audit or examination is pending, or that could materially affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability Subsidiaries of the Company Company) provided for under the Laws of any jurisdiction or any Company Subsidiary before state or locality with respect to Taxes, for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdershareholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and each of any other party under which Buyer, the Surviving Corporation, the Company or any of their respective Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementscould be liable for any Taxes or other claims of any party.
(v) No indebtedness of the Company or any of its Subsidiaries consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Code or bears interest that is otherwise nondeductible pursuant to Section 163 of the Code.
(vi) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it shall be required to take into account any adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality and, to the Knowledge of the Company, neither the IRS nor any other taxing authority has proposed to require any such adjustment or change in accounting method, and, to the Knowledge of the Company, no such adjustment under Section 481 of the Code or the corresponding tax laws of any nation, state or locality will be required of the Company Subsidiary or its subsidiaries upon the completion of, or by reason of, the transaction contemplated by this Agreement.
(vii) Neither the Company nor any of its Subsidiaries, as of the Closing Date, (w) has waived entered into an agreement or waiver to extend, has received a written request to extend or, to the Knowledge of the Company, has been requested to enter into an agreement or waiver extending any statute of limitations with respect relating to the payment or collection of Taxes nor agreed of the Company or any of its Subsidiaries that has not expired, (x) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any Governmental Entity, (y) has granted any power-of-attorney related to Tax matters to any extension Person, or (z) in the past six years, has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of time with respect to a Tax assessment the Company or deficiencyany of its Subsidiaries.
(viviii) Neither the Company nor any of its Subsidiaries is a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code at any time during the five-year period ending on the date hereof.
(ix) There are no liens for material Taxes (except Taxes not yet due and payable) security interest on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company its Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer that arose in compromise, or any other agreement connection with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan failure (or series of related transactions)” within the meaning of Section 355(ealleged failure) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Codepay any Taxes.
(x) Neither the Company nor any of its Subsidiaries is a party to any agreement that would require the Company or any of its Subsidiaries to make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and 4999 of the Code or that would not be deductible pursuant to Section 162(m) of the Code.
(xi) No written Claim has participated ever been made by any taxing authority in a “listed transaction” jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is, or may be, subject to taxation by that jurisdiction.
(A) There are no deferred intercompany transactions between the Company and any of its Subsidiaries or between its Subsidiaries and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither 19 with respect to the Company nor any stock of the Company Subsidiaries or any of its Subsidiaries) that will be required to include any material item or may result in the recognition of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after upon the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) consummation of the Code transaction contemplated by this Agreement, and (B) there are no other transactions or any corresponding provision of state, local or foreign Tax law) made facts existing with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge Company and/or its Subsidiaries that by reason of the Company, any intercompany transaction or excess loss account described in Section 1502 consummation of the Code (or any corresponding provision of state, local or foreign Tax law)transaction contemplated by this Agreement will result in the Company and/or its Subsidiaries recognizing income.
Appears in 2 contracts
Samples: Merger Agreement (T Netix Inc), Merger Agreement (T Netix Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the The Company and the Company each of its Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently have not been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality with respect to any taxable period for which the statute of limitations has not expired, nor has the Company nor or any of the Company its Subsidiaries received any written notices with respect to such taxable periods from any Taxing Authority that such an audit or examination is pending, or that tax authority relating to any issue which could affect the Tax liability of the Company or any of the Company its Subsidiaries was required to file any Tax Return that was has not filedbeen resolved or paid in full.
(ii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability Subsidiaries of the Company Company) provided for under the laws of the United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Parent, Sub or the Company and each (or any of its Subsidiaries) could be liable for any Taxes or other claims of any party other than the Company or any Subsidiary of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsCompany.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets No indebtedness of the Company or any of its Subsidiaries consists of "corporate acquisition indebtedness" within the Company Subsidiariesmeaning of Section 279 of the Code.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiivi) Neither the Company nor any of its Subsidiaries has been required to include in income any adjustment pursuant to Section 481 or any similar provision of the Code or the corresponding tax laws of any nation, state or locality by reason of a voluntary change in accounting method initiated by the Company Subsidiaries is a party to or is bound by any Tax sharingof its Subsidiaries, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)Internal Revenue Service or other taxing authority has not initiated or proposed any such adjustment or change in accounting method.
(ixvii) Neither the Company nor any of its Subsidiaries has, as of the Closing Date: (A) entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or any of its Subsidiaries has beenor (B) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any court, within the past two years tribunal or otherwise as part of a “plan agency.
(or series of related transactions)” within the meaning of Section 355(eviii) No election under 341(f) of the Code of which has been made or shall be made prior to the Merger is also Closing Date to treat the Company as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 2 contracts
Samples: Merger Agreement (Wang Laboratories Inc), Merger Agreement (Wang Laboratories Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any (A) none of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary Acquired Entities is currently the subject of an audit or other examination relating to the payment of material Taxes of by the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor any and (B) none of the Company Subsidiaries Acquired Entities has received any written notices notice from any Taxing Authority that such taxing authority relating to any issue which could have an audit or examination is pending, or that adverse effect in any material respect on the Company or any Tax liability of the Company Subsidiaries was required to file any Tax Return that was not filedAcquired Entities after the date hereof.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability None of the Company Acquired Entities has entered into an agreement or waiver that will be in effect after the date hereof or been requested to enter into an agreement or waiver that could be in effect after the date hereof extending any Company Subsidiary before any courtstatute of limitations relating to the payment, tribunal assessment or agencycollection of Taxes of the Acquired Entities.
(iii) All material Taxes that the Company or which any of the Company Subsidiaries is (or was) Acquired Entities was required by Applicable applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member non-resident or other third party have been duly withheld or collectedcollected (including, but not limited to, Code Section 3402), and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each There are no tax sharing, allocation, indemnification or similar agreements in effect as between any of the Company Subsidiaries has complied in all material respects with all information reporting Acquired Entities and any other Person (and related withholdingother than the Acquired Entities) and record retention requirementsunder which the Acquired Entities could be liable for the Taxes of another Person after the date hereof.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations There are no Liens with respect to any Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencythe Acquired Entities other than Permitted Liens.
(vi) There are To the Seller’s Knowledge, no liens jurisdiction where no Tax Return has been filed or no Tax has been paid by any Acquired Entity has made a claim for material Taxes (except Taxes not yet due and payable) on the payment of any Acquired Entity Tax or the filing of the assets of the Company or any of the Company SubsidiariesAcquired Entity Tax Return.
(vii) None of the Company and the Company Subsidiaries No Acquired Entity is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, federal taxable income in for any taxable Tax period (or portion thereof) ending after the Closing Date Date, as a result of a change in method of accounting, any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on amount.
(viii) No Acquired Entity is or prior has ever been a beneficiary of or otherwise participated in any reportable transaction within the meaning of Treasury Regulation Section 1.6011-4(b)(1).
(ix) There are no Tax rulings, requests for rulings or closing agreements relating to the Closing Date, Taxes for which any election pursuant Acquired Entity may be liable that would reasonably be likely to Section 108(i) of the Code (or adversely affect any corresponding provision of state, local or foreign Tax law) made with respect to Acquired Entity’s liability for Taxes for any taxable period ending on or prior to after the Closing Date.
(x) No Acquired Entity has distributed stock of another Person nor has its stock been distributed by another Person, orin a transaction that was purported or intended to be governed in whole or in part by Code Section 355.
(xi) None of the Acquired Entities will recognize any income, gain or loss, as a result of the Combination or the Dividend Recapitalization.
(xii) Each of NRC Group Holdings, LLC, JFL-NRC Holdings, LLC, and NRC Intermediate Int. Holding Company, LLC, has at all times since the date of its formation been classified as a disregarded entity for U.S. federal and applicable state income Tax purposes; each of NRC US Holding Company, LLC, NRC Int. Holding Company, LLC, and SES Holdco, LLC, is classified as a corporation for U.S. federal and applicable state income Tax purposes.
(xiii) The representations and warranties in this Section 3.07 are the sole and exclusive representations and warranties of the Seller regarding Tax matters of the Acquired Entities and refer only to the Knowledge past activities of the CompanyAcquired Entities and are not intended to serve as a representation to or a guarantee of, nor can they be relied upon for, any intercompany transaction Tax position taken on or excess loss account described in Section 1502 of after the Code (or any corresponding provision of state, local or foreign Tax law)Closing Date.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Hennessy Capital Acquisition Corp. III)
Other Tax Matters. (iA) No deficiency with respect to a material amount Section 3.01(l)(iii)(A) of Taxes has been proposed, asserted the Company Disclosure Letter sets forth (1) each taxable year or assessed against other taxable period of the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, its subsidiaries for which adequate reserves have been established on an audit or other examination of Taxes by the books and records appropriate tax authorities of any nation, state or locality is currently in progress (or scheduled to be conducted) together with the names of the Company respective tax authorities conducting (or scheduled to conduct) such audits or examinations and a description of the Company Subsidiaries in accordance with U.S. GAAP. Neither material subject matter of such audits or examinations, (2) the Company nor any Company Subsidiary is currently the subject of most recent taxable year or other taxable period for which an audit or other examination relating to the payment of material Taxes Federal income taxes of the Company or and its subsidiaries has been finally completed and the disposition of such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pendingexamination, (3) the taxable years or that other taxable periods of the Company or any of its subsidiaries which will not be subject to the Company Subsidiaries was required to file any Tax Return normally applicable statute of limitations by reason of the existence of circumstances that was not filed.would
(iiB) Neither the Company nor any of its subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability subsidiaries of the Company Company) provided for under the law of the United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iiiC) All material Taxes that which the Company or any of the Company Subsidiaries its subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(viD) There are no liens for material Taxes tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any subsidiary, or any predecessor or affiliate thereof and any other party under which Parent, Purchaser or the Company (except Taxes not yet due and payable) on or any of its subsidiaries) could be liable for any Taxes or other claims of any party other than the assets Company or any subsidiary of the Company.
(E) No indebtedness of the Company or any of its subsidiaries consists of "corporate acquisition indebtedness" within the Company Subsidiariesmeaning of Section 279 of the Code.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiiF) Neither the Company nor any of the Company Subsidiaries is a party its subsidiaries has been required to or is bound by include in income any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of adjustment pursuant to Section 355(e) 481 of the Code by reason of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) voluntary change in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x) Neither accounting method initiated by the Company nor or any of its subsidiaries, and the Company Subsidiaries Internal Revenue Service has participated not initiated or proposed any such adjustment or change in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawaccounting method.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 2 contracts
Samples: Merger Agreement (Raymond Corp), Merger Agreement (Lift Acquisition Co Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently of its ----------------- Subsidiaries has been the subject of an any audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality locality, nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of its Subsidiaries received any material notices from any tax authority relating to a Tax liability of the Company Subsidiaries was required to file or any Tax Return that was not filedof its Subsidiaries.
(ii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability Subsidiaries of the Company Company) provided for under the laws of the United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and each of any other party under which Parent, Sub, the Company or any of its Subsidiaries has complied in all could be liable for any material respects with all information reporting (and related withholding) and record retention requirementsTaxes or other claims of any party.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets No indebtedness of the Company or any of its Subsidiaries consists of "corporate acquisition indebtedness" within the Company Subsidiariesmeaning of Section 279 of the Code.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiivi) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any material adjustment pursuant to Section 481 or any similar provision of the Company Subsidiaries is a party to Code or is bound by the corresponding tax laws of any Tax sharingnation, allocation state or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)locality.
(ixvii) Neither the Company nor any of its Subsidiaries, as of the Closing Date: (A) has entered into a written agreement or waiver or been requested in writing to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or any of its Subsidiaries, (B) is presently contesting a material Tax liability of the Company or any of its Subsidiaries before any court, tribunal or agency, or (C) has been, within applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the past two years Company or otherwise as part any of a “plan its Subsidiaries.
(or series of related transactions)” within the meaning of Section 355(eviii) No election under 341(f) of the Code has been made or shall be made prior to the Closing Date to treat the Company or any of which the Merger is also its Subsidiaries as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(xix) Neither The Company has delivered or made available to Parent true and complete copies of all agreements and arrangements that would require the Company nor or any of its Subsidiaries to make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and 4999 of the Code, together with all other information within the possession of the Company Subsidiaries has participated in a “listed transaction” within necessary to compute any such excess parachute payment, but only to the meaning of Treasury Regulations Section 1.6011-4(b)(2) extent that the Company or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
its Subsidiaries is required to make a gross-up payment to the recipient of such excess parachute payment (xito reimburse such recipient for the excise taxes (and related taxes) Neither the Company nor any of the Company Subsidiaries that will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date imposed upon him as a result of receiving such excess parachute payment); provided, however, that this representation shall be -------- ------- deemed to not have been breached if the failure to deliver or make available a particular document or information, or if inaccuracies, errors or omissions in the information delivered or made available, would not reasonably be expected to have a Material Adverse Effect on the Company.
(x) No claim has ever been made by any closing agreement, installment sale or open transaction on or prior to taxing authority in a jurisdiction where the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (Company or any corresponding provision of state, local or foreign its Subsidiaries does not file Tax law) made with respect to any taxable period ending on or prior to Returns that the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (Company or any corresponding provision of state, local its Subsidiaries is or foreign Tax law)may be subject to taxation by that jurisdiction.
Appears in 2 contracts
Samples: Merger Agreement (Royal Ahold), Merger Agreement (Us Foodservice/Md/)
Other Tax Matters. (i) No deficiency with respect to a material amount Except as set forth on Schedule 3.14(c)(i), neither DMI nor any of Taxes its Subsidiaries has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state state, or locality (and no such audit is pending or contemplated) nor has the Company nor DMI or any of the Company its Subsidiaries received any written notices from any Taxing Authority taxing authority relating to any issue that such an audit or examination is pending, or that could adversely affect the Company Tax liability of DMI or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company Except as set forth on Schedule 3.14(c)(ii), neither DMI nor any Company Subsidiary of its Subsidiaries, as of the Closing Date, (A) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of DMI or any of its Subsidiaries, (B) is presently contesting any material the Tax liability of the Company DMI or any Company Subsidiary before of its Subsidiaries before, any court, tribunal or agency, (C) has granted a power-of-attorney relating to Tax matters to any person or (D) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of DMI.
(iii) Neither DMI nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Return provided for under the law of the United States, any non-U.S. jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All material Taxes that the Company DMI or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdershareholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor Except as set forth on Schedule 3.14(c)(v), no written claim has ever been made by any Company Subsidiary has waived taxing authority in a jurisdiction where DMI or any statute of limitations with respect its Subsidiaries does not file Returns that DMI or any of its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company tax sharing, allocation, indemnification, or similar agreements in effect as between DMI or any predecessor or Related Person thereof and any other party (including DMI and any predecessors or Related Persons thereof) under which NEWCO or DMI could be liable for any Taxes or other claims of the Company Subsidiariesany party.
(vii) None Neither DMI nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Company and Code or any similar provision of the Company Subsidiaries is a party to Code or bound by the corresponding tax laws of any closing agreementnation, private letter rulings, technical advance memoranda, offer in compromisestate, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Datelocality.
(viii) Neither No election under Section 341(f) of the Company nor Code has been made or shall be made prior to the Closing Date to treat DMI or any of its Subsidiaries as a consenting corporation, as defined in Section 341 of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)Code.
(ix) Neither the Company DMI nor any of the Company its Subsidiaries has been, within the past two years or otherwise as part is a party to any agreement that would require it to make any payment that would constitute an “excess parachute payment” for purposes of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 Sections 280G and 4999 of the Code.
(x) Neither the Company nor any No indebtedness of the Company Subsidiaries has participated in a DMI consists of “listed transactioncorporate acquisition indebtedness” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions 279 of state, local or foreign Tax lawthe Code.
(xi) Neither DMI is not a “foreign person” within the Company nor any meaning of Section 1445 of the Company Subsidiaries will be required to include any material item Code.
(xii) DMI has not been a member of income in, or to exclude any material item of deduction from, taxable income an affiliated group (as such term is defined in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) 1504 of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax lawCode).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount (A) there are no audits or other examinations of Taxes has been proposed, asserted or assessed against by the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority appropriate tax authorities of any nation, state or locality nor has currently in progress (or to the knowledge of Companies scheduled as of the Closing Date to be conducted), (B) there have been no audits or other examinations relating to Federal income taxes of Arcon Holdings or the Company nor any which have resulted in an adjustment in Federal income tax liability, (C) there are no taxable years or other taxable periods of Arcon Holdings or the Company which will not be subject to the normally applicable statute of limitations by reason of the existence of circumstances that would cause any such statute of limitations for applicable Taxes to be extended, (D) no taxing authority has notified Arcon Holdings or the Company Subsidiaries that it has proposed or assessed any adjustments or assessed any deficiency relating to any Returns for Tax liability of Arcon Holdings or the Company and (E) neither Arcon Holdings nor the Company has received any written notices notice from any Taxing Authority that such an audit taxing authority relating to any issue which could affect the Tax liability of Arcon Holdings or examination is pendingthe Company, which issue has not been finally determined and which, if determined adversely to Arcon Holdings or that the Company or any of the Company Subsidiaries was required to file any Company, could result in a Tax Return that was not filedliability.
(ii) Neither Except for the Company nor consolidated, unitary or combined Returns filed by Arcon Holdings that have included the Company, as set forth on Schedule 3.14 hereto, the Companies have not been included in any Company Subsidiary is presently contesting any material Tax liability "consolidated," "unitary" or "combined" Return provided for under the law of the Company United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which Arcon Holdings or the Company or any of the Company Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Neither Arcon Holdings nor the Company and each is a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Company Subsidiaries has complied in all material respects with all information reporting Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (and related withholding) and record retention requirementsthe "Code").
(v) Neither There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between Arcon Holdings or the Company nor or any predecessor or affiliate thereof and any other party (including any of the Sellers and any predecessor or affiliate thereof) under which the Purchaser, Arcon Holdings or the Company Subsidiary has waived could be liable for any statute Taxes or other claims of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyparty.
(vi) There are no liens Neither Arcon Holdings nor the Company has applied for, been granted, or agreed to any accounting method change for material Taxes (except Taxes not yet due and payable) on which it will be required to take into account any adjustment under Section 481 of the assets Code or any similar pro- vision of the Company Code or the corresponding tax laws of any of the Company Subsidiariesnation, state or locality.
(vii) None At and after giving effect to Closing there will not be any indebtedness of Arcon Holdings or the Company that consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing DateCode.
(viii) Neither Arcon Holdings nor the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such that would require it to make any payment that would constitute an agreement or arrangement exclusively between or among the Company "excess parachute payment" for purposes of Sections 280G and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 4999 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect Schedule 2.12 previously delivered to a material amount Parent sets forth (A) each taxable year or other taxable period of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, its subsidiaries for which adequate reserves have been established on an audit or other examination of Taxes by the books and records appropriate tax authorities of any nation, state or locality is currently in progress (or scheduled to be conducted) together with the names of the Company respective tax author- ities conducting (or scheduled to conduct) such audits or examinations and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently a description of the subject matter of such audits or examinations, (B) the most recent taxable year or other taxable period for which an audit or other examination relating to the payment of material Taxes Federal income taxes of the Company or and its subsidiaries has been finally completed and the disposition of such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pendingexamination, (C) the taxable years or that other taxable periods of the Company or any of its subsidiaries which will not be subject to the Company Subsidiaries was required normally applicable statute of limitations by reason of the existence of circumstances that would cause any such statute of limitations for applicable Taxes to file be extended, (D) the amount of any Tax Return that was not filed.
proposed adjustments (iiand the principal reason therefor) Neither the Company nor relating to any Company Subsidiary is presently contesting any material Returns for Tax liability of the Company or any of its subsidiaries which have been proposed or assessed by any taxing authority and (E) a list of all notices received by the Company Subsidiary before or any courtof its subsidiaries from any taxing authority relating to any issue which could affect the Tax liability of the Company or any of its subsidiaries, tribunal which issue has not been finally determined and which, if determined adversely to the Company or agencyany such subsidiaries, could result in a material Tax liability.
(ii) Except as provided on Schedule 2.12, neither the Company nor any of its subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company and any subsidiaries of the Company) provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company Subsidiaries its subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Except as previously disclosed to Parent, the Company is not a party to any agreement that would require it to make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and each 4999 of the Company Subsidiaries has complied in all material respects with all information reporting Internal Revenue Code of 1986, as amended (and related withholding) and record retention requirementsthe "Code").
(v) Neither There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any subsidiary, or any predecessor or affiliate thereof and any other party under which Parent, Purchaser or the Company nor (or any of its subsidiaries) could be liable for any Taxes or other claims of any party other than the Company Subsidiary has waived or any statute subsidiary of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencythe Company.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets No indebtedness of the Company or any of its subsidiaries consists of "corporate acquisition indebtedness" within the Company Subsidiariesmeaning of Section 279 of the Code.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party its subsidiaries has been required to or is bound by include in income any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of adjustment pursuant to Section 355(e) 481 of the Code by reason of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) voluntary change in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x) Neither accounting method initiated by the Company nor or any of its subsidiaries, and the Company Subsidiaries Internal Revenue Service has participated not initiated or proposed any such adjustment or change in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawaccounting method.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any the Company Subsidiary Subsidiaries is currently the subject of an audit or other examination relating to the payment of a material amount of Taxes of the Company or such the Company Subsidiary Subsidiaries by a Taxing Authority the tax authorities of any nation, state or locality nor has have the Company nor any of or the Company Subsidiaries received any written notices from any Taxing Authority taxing authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) . Neither the Company nor the Company Subsidiaries (A) have entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes of the Company Subsidiary or the Company Subsidiaries that has not expired or (B) is presently contesting any material Tax liability of the Company or any the Company Subsidiary Subsidiaries before any court, tribunal or agency.
(iii) . All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
. Neither the Company nor any Company Subsidiary is, or was at any time during the five (iv5) The Company and each year period ending on the Closing Date, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Code. Neither the Company nor any Company Subsidiary has waived been included in any statute "consolidated", "unitary" or "combined" Return provided for under the Law of limitations the United States, any non-U.S. jurisdiction or any state or locality with respect to Taxes nor agreed for any taxable period for which the statute of limitations has not expired, other than a Return for a group of which the Company and/or the Company Subsidiaries are the only members. No written claim has ever been made by any Taxing authority in a jurisdiction where the Company or any Company Subsidiary does not file Returns that the Company or any Company Subsidiary is or may be subject to any extension of time with respect to a Tax assessment or deficiency.
(vi) taxation by that jurisdiction. There are no liens for material Taxes Tax-sharing, allocation, indemnification or similar Contracts in effect as between the Company or any predecessor or Affiliate thereof and any other party (except Taxes not yet due including any Equityholder and payableany predecessors or Affiliates thereof) on any of the assets of under which Parent, the Company or any of the Company Subsidiaries.
(viiSubsidiaries could be liable for any Taxes or other claims of any party. Except as set forth in Section 3.12(c)(viii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreementDisclosure Letter, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries Subsidiary will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in for any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale of the following that occurred or open transaction exists on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to : (A) a "closing agreement" as described in Section 108(i) 7121 of the Code (or any corresponding or similar provision of state, local or foreign non-U.S. income Tax lawLaw); (B) made with respect an installment sale or open transaction; (C) a prepaid amount; (D) an intercompany item under Treasury Regulation Section 1.1502-13 or an excess loss account under Treasury Regulation Section 1.1502-19; or (E) a change in the accounting method of the Company or any of its Subsidiaries pursuant to Section 481 of the Code or any taxable similar provision of the Code or the corresponding Tax Laws of any nation, state or locality. During the five (5) year period ending on or prior to the Closing Datedate of this Agreement, or, to neither the Knowledge Company nor any of the Company, any intercompany Company Subsidiaries was a distributing corporation or a controlled corporation in a transaction or excess loss account described in intended to be governed by Section 1502 355 of the Code (Code. Neither the Company nor any of the Company Subsidiaries has engaged in a "reportable transaction" within the meaning of Treasury Regulations Section 1.6011-4(b). Except for Permitted Liens, there are no Liens on any of the assets of the Company or any corresponding provision of state, local or foreign Tax law)the Company Subsidiaries that arose in connection with any failure to pay any Tax. The Company and each of the Company Subsidiaries has disclosed on its federal income tax return all positions taken therein that could give rise to a "substantial understatement of income tax" within the meaning of Section 6662 of the Code.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently of its Subsidiaries (A) has been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that is such an audit contemplated or examination is pending, or that pending and (B) has received any notice from any taxing authority relating to any issue which could affect the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any of its Subsidiaries.
(ii) None of the Company, any of its Subsidiaries or any Primary Seller, and, to the knowledge of the Sellers, none of the other Sellers, (A) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiary or any of its Subsidiaries, (B) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any court, tribunal or agency, (C) has granted a power-of-attorney relating to Tax matters to any person or (D) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company or any of its Subsidiaries.
(iii) All material Taxes that Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All Taxes which the Company and any of its Subsidiaries is are (or waswere) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdermember, member shareholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each of No written claim has ever been made by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither does not file Tax Returns that the Company nor or any Company Subsidiary has waived any statute of limitations with respect its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) None of the Company, any of its Subsidiaries, nor any predecessor or Affiliate of any of them is currently a party to any Tax sharing, allocation, indemnification or similar agreement with any other party under which the Buyer, the Company or any of its Subsidiaries could be liable for any Taxes or other claims of such other party after the Closing Date.
(vii) None of the Company’s Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(viii) There are no material security interests (other than liens for material Taxes (except Taxes not yet due and payabledelinquent) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company its Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer that arose in compromise, or any other agreement connection with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
failure (viiior alleged failure) Neither the Company nor to pay any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)Taxes.
(ix) Neither the Company nor No Indebtedness of any of the Company Company’s Subsidiaries has been, within the past two years or otherwise as part of a constitutes “plan (or series of related transactions)corporate acquisition indebtedness” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 279 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in No Seller is a “listed transactionforeign person” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions 1445 of state, local or foreign Tax lawthe Code.
(xi) Neither the The Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date is and has always been properly classified and taxed as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, partnership for U.S. federal tax purposes and applicable state and local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)tax purposes.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (First Advantage Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposedSince December 31, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid2011, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently has been the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has Tax authorities. Neither the Company nor any of the Company Subsidiaries has received since December 31, 2011, any written notices from any Taxing Authority taxing authority that such an audit or examination is contemplated or pending. Schedule 3.13(c)(i) lists all federal, or that state, local, and foreign income Tax Returns filed with respect to the Company or any of the Company Subsidiaries was required for taxable periods ended on or after December 31, 2011, indicates those Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject of audit. The Company has made available to file Parent correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by the Company or any Tax Return that was not filedof the Company Subsidiaries filed or received since December 31, 2011.
(ii) Neither the Company nor any Company Subsidiary is presently contesting (A) has entered into a written agreement or waiver extending any material Tax liability statute of limitations relating to the payment or collection of Taxes of the Company or any Company Subsidiary Subsidiary, in each case, that has not expired or (B) is presently contesting any Tax applicable to it or assessed against it before any court, tribunal or agencyGovernmental Entity.
(iii) All material Taxes that each of the Company or any of and the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, collected and have been paid over to the proper authorities to the extent due and payable, in all material respects. All IRS Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.
(iv) The Since December 31, 2011, neither the Company and each nor any of the Company Subsidiaries has complied received a written claim from a Tax authority in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations a jurisdiction with respect to Taxes nor agreed which it does not file Tax Returns that it is or may be subject to any extension of time with respect to a Tax assessment or deficiency.
(vi) taxation by that jurisdiction. There are no liens Liens for material Taxes (except other than Permitted Liens and Taxes not yet due and payable) on upon any of the assets of the Company or any of the Company Subsidiaries.
(viiv) None Neither the Company nor any of the Company and Subsidiaries has participated in any “reportable transaction” within the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after meaning of Section 1.6011-4 of the Closing Date.
(viii) Treasury Regulations. Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax allocation, sharing, allocation indemnity, contractual or indemnification similar agreement, in each case, with respect to Taxes (including any advance pricing agreement, closing agreement or arrangement (other agreement relating to Taxes with any Governmental Entity), other than such an any commercial agreement or arrangement exclusively between or among entered into in the Company and ordinary course of business the Company Subsidiaries).
(ix) primary focus of which is not Taxes. Neither the Company nor any of the Company Subsidiaries (A) is or has been, within the past two years or otherwise as part ever been a member of a an “plan (or series of related transactions)affiliated group” within the meaning of Section 355(e1504(a) of the Code filing a consolidated federal income Tax Return or a member of an affiliated, consolidated, combined or unitary group with respect to any state, local or foreign Taxes (other than a group the common parent of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor or any Company Subsidiary), or (B) has any liability for the Taxes of any Person other than the Company or any of the Company Subsidiaries has participated in a “listed transaction” within under Section 1.1502-6 of the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any other transaction requiring disclosure under analogous provisions corresponding or similar provision of state, local local, or foreign Tax lawLaw), as a transferee or successor, by contract, or otherwise.
(xivi) Neither the Company Parent nor any of its Subsidiaries (including after the Closing Date, the Company Subsidiaries and the Company Subsidiaries) will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in for any taxable period (or portion thereof) ending after the Closing Date as a result of:
(1) any change in method of any closing agreement, installment sale accounting by or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to the Company or any of the Company Subsidiaries for a taxable period ending on or prior to the Closing Date, or, Date made prior to the Knowledge of the Company, Closing Date;
(2) any intercompany transaction or excess loss account “closing agreement” as described in Section 1502 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax lawLaw) executed by or on behalf of the Company or any of the Company Subsidiaries on or prior to the Closing Date;
(3) any installment sale or open transaction disposition made by or on behalf of the Company or any of the Company Subsidiaries on or prior to the Closing Date; or
(4) any prepaid amount received by or on behalf of the Company or any of the Company Subsidiaries on or prior to the Closing Date other than prepaid amounts received in the ordinary course of business.
(vii) Neither the Company nor any of the Company Subsidiaries has elected to defer cancellation of indebtedness income under Section 108(i) of the Code.
(viii) No written claim has been asserted by any Governmental Entity that the Company or any of the Company Subsidiaries is liable for any Taxes based on Section 482 of the Code (or any corresponding or similar provision of state, local or foreign Law).
(ix) Schedule 3.13(c)(ix) sets forth a description of all transactions with respect to which the Company or any of the Company Subsidiaries has received a ruling request from any Taxing authority and contains a copy of such ruling requests and the corresponding rulings.
(x) In the last three years, neither the Company nor any of the Company Subsidiaries has distributed stock of another Person, or has had its stock distributed to another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Emdeon Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the The Company and the Company each of its Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently have not been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality with respect to any taxable period for which the statute of limitations has not expired, nor has the Company nor or any of the Company its Subsidiaries received any written notices with respect to such taxable periods from any Taxing Authority that such an audit or examination is pendingtax authority, or that relating to any issue which could materially affect the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any of its Subsidiaries that has not been resolved or paid in full.
(ii) The Company Subsidiary before has provided or made available to Buyer complete and accurate copies of (A) all federal income Tax Returns, and any courtamendments thereto, tribunal filed by the Company or agencyany of its Subsidiaries covering all years ending on or after February 28, 1995 and all state income or franchise Tax Returns, and any amendments thereto, filed by the Company or any of its Subsidiaries, covering all taxable years ending on or after January 31, 1998, (B) all audit reports received from any taxing authority relating to any Tax Return filed by the Company or any of its Subsidiaries, (C) any written and legally binding agreement with a taxing authority relating to Taxes entered into by the Company or any of its Subsidiaries that would have a continuing effect after the Closing Date and (D) any written ruling of a taxing authority relating to Taxes received by the Company or any of its Subsidiaries that would have a continuing effect after the Closing Date.
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Buyer, or the Company and each (or any of its Subsidiaries) could be liable for any material Taxes or other material claims of any party other than the Company or any Subsidiary of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsCompany.
(v) Neither the Company nor any Company Subsidiary of its Subsidiaries has waived been required to include in income any statute of limitations with respect adjustment pursuant to Taxes nor agreed to Section 481 or any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any similar provision of the assets Code or the corresponding tax laws of any nation, state or locality by reason of a voluntary change in accounting method initiated by the Company or any of its Subsidiaries, and the Company SubsidiariesInternal Revenue Service or other taxing authority has not initiated or proposed any such adjustment or change in accounting method.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiivi) Neither the Company nor any of the Company Subsidiaries is a party its Subsidiaries: (A) has requested any extensions of time within which to or is bound by any file Tax sharingReturns, allocation or indemnification agreement or arrangement which Tax Returns have not since been filed, (other than such B) has entered into an agreement or arrangement exclusively between waiver extending any statute of limitations relating to the payment or among collection of Taxes of the Company and or any of its Subsidiaries which statute of limitations has not expired or (C) is contesting the Tax liability of the Company Subsidiaries)or any of its Subsidiaries before any court, tribunal or agency.
(ixvii) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(eNo election under 341(f) of the Code of which has been made or shall be made prior to the Merger is also Closing Date to treat the Company as a part, a “distributing corporation” or a “controlled corporation” (within the meaning of consenting corporation as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(xviii) Neither the Company nor No amount payable under any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) Employee Benefit Plan or any other transaction requiring disclosure under analogous provisions of stateagreement, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income incontract, or arrangement will fail to exclude any material item be deductible for Federal income tax purposes by virtue of deduction from, taxable income in any taxable period (Section 280G or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i162(m) of the Code or will fail to be deductible under the Applicable Laws of any non-U.S. jurisdiction.
(or any corresponding provision of state, local or foreign Tax lawix) made with respect to any taxable period ending on or prior to To the Closing Date, or, to the Knowledge best knowledge of the Company, any intercompany transaction no foreign person owns or excess loss account described has owned beneficially more than five percent of the total fair market value of Company Common Stock during the applicable period specified in Section 1502 897(c)(1)(A)(ii) of the Code (Code. To the best knowledge of the Company, no foreign person owns or any corresponding provision has owned beneficially Company Stock Options, Warrants or 4 1/2% Convertible Notes due 2000 of state, local or foreign Tax law)the Company having a fair market value greater than five percent of the total fair market value of the Company Common Shares measured at the time of such ownership.
Appears in 1 contract
Other Tax Matters. (i1) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary of its Subsidiaries nor any Affiliated Group is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, province, territory, state or locality nor has locality, (ii) no such audit or other examination is pending, or to the Company’s Knowledge, threatened and (iii) neither the Company nor any of the Company its Subsidiaries has received any written notices notice from any Taxing Authority that such taxing authority relating to any issue which could have an audit or examination is pending, or that adverse effect on the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agencyof its Subsidiaries.
(iii2) All material Neither the Company nor any of its Subsidiaries (i) has entered into an agreement or waiver that will be in effect as of the Closing Date or been requested to enter into an agreement or waiver extending any time limitation or statute of limitations relating to the filing of any Tax Return, the assessment, payment or collection of Taxes that of the Company or any of its Subsidiaries, or (ii) is presently contesting the Tax liability of the Company or any of its Subsidiaries in any administrative or judicial proceeding.
(3) Neither the Company nor any of its Subsidiaries has been included in any Affiliated Group with any Person (other than the Company or any current Subsidiary thereof) for any taxable period for which the statute of limitations has not expired.
(4) All Taxes which the Company and each or any of its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv5) The Company and each of No claim has been made in writing by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsdoes not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi6) There are no liens for material Taxes (except Taxes not yet due and payable) on tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any of the assets of its Subsidiaries or any predecessor or affiliate thereof (other than Parent and its affiliates) and any other party under which Parent, Subco, the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Company’s Subsidiaries is a party to could be liable for any Taxes or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromiseother claims of, or could otherwise have any other agreement with liability or obligation to, any Taxing Authority, in each case that could have a materially adverse effect party after the Closing Date.
(viii7) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Company Subsidiaries is a party to Code or is bound by any similar provision of the Code or the corresponding Tax sharingLaws of any nation, allocation province, territory, state or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)locality.
(ix8) No election under Section 341(f) of the Code has been made or shall be made prior to the Closing Date to treat the Company or any of its Subsidiaries as a consenting corporation, as defined in Section 341 of the Code.
(9) Neither the Company nor any of its Subsidiaries is a party to any agreement that would require (including as a result of the execution and delivery of this Agreement or the consummation of the Amalgamation or any of the other transactions contemplated by this Agreement) the Company or any of its Subsidiaries has been, within or any affiliate thereof to make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the past two years Code or otherwise as part of a “plan (or series of related transactions)” within the meaning of that would not be deductible pursuant to Section 355(e162(m) of the Code or the corresponding Tax Laws of which any nation, province, territory, state or locality.
(10) The Company and each of its Subsidiaries have delivered to Parent and Subco true, complete and correct copies of each of the Merger is also a part, a “distributing corporation” or a “controlled corporation” Tax Returns for income Taxes filed on behalf of the Company and each of its Subsidiaries for the 1999 tax year and all subsequent tax years.
(within 11) The non-capital losses (as defined in the meaning of Section 355(a)(1)(AITA) of the Code) Company and each of its Subsidiaries, in a distribution of stock intended the aggregate, are equal to qualify for tax-free treatment under Section 355 of or exceed the Codeamounts listed in Company Audited Financial Statements.
(x12) Neither There are (i) no deferred intercompany transactions between the Company nor and any of its Subsidiaries or between the Company Company’s Subsidiaries has participated in a “listed transaction” and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) 19 with respect to the stock of the Company or any of its Subsidiaries) which will or may result in the recognition of income upon the consummation of the transaction contemplated by this Agreement, and (ii) no other transactions or facts existing with respect to the Company and/or its Subsidiaries which by reason of the consummation of the transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawcontemplated by this Agreement will result in the Company and/or its Subsidiaries recognizing income.
(xi13) Neither the Company nor any No indebtedness of the Company or any of its Subsidiaries will be required to include any material item consists of income in, or to exclude any material item “corporate acquisition indebtedness” within the meaning of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) 279 of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)Code.
Appears in 1 contract
Samples: Combination Agreement (Ssa Global Technologies, Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount Except as set forth in Section 3.12(c)(i) of Taxes has been proposed, asserted or assessed against the Company or Disclosure Letter, neither the Company nor any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor or any of the Company Subsidiaries received any written notices from any Taxing Authority taxing authority that such an audit or examination is contemplated or pending. To the Knowledge of the Company, there is no material dispute or that claim concerning any Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedSubsidiaries.
(ii) Neither the Company nor any of the Company Subsidiary Subsidiaries has (A) entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes of the Company or any of the Company Subsidiaries that has not expired or (B) is presently contesting any material Tax liability of the Company or any of the Company Subsidiary Subsidiaries before any court, tribunal or agency.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, tax allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)sharing agreement.
(ixv) Neither the Company nor any of the Company Subsidiaries (A) has been, within been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code common parent of which was the Merger is also a part, a “distributing corporation” Company) or a “controlled corporation” (within the meaning B) has any liability for Taxes of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
any Person (x) Neither the other than Company nor or any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Subsidiaries) under Treasury Regulations Section 1.60111.1502-4(b)(2) 6 (or any other transaction requiring disclosure under analogous provisions similar provision of state, local local, or foreign Tax law), as transferee or successor, by contract, or otherwise.
(xivi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in for any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any (A) change in accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any accounting for a taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction Date or excess loss account (B) “closing agreement” as described in Code Section 1502 of the Code 7121 (or any corresponding or similar provision of state, local or foreign income Tax law)) executed on or prior to the Closing Date.
(vii) The Company is not a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(viii) Neither the Company nor any of the Company Subsidiaries has distributed stock of another Person, or has had its stock distributed by another person, in a transaction that was reported or intended to be governed in whole or in part by Code Section 355 or Code Section 361.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount SCHEDULE 3.10(D)(I) sets forth (A) each taxable period of Taxes any Company (and the relevant taxing authority) for which such Company has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies notified in writing that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating of Taxes by any taxing authority is currently in progress, (B) the taxable years of each Company for which any tax will not be subject to the payment normally applicable statute of material Taxes limitations because of the Company written waivers or comparable consents given by such Company Subsidiary by and (C) a Taxing Authority list of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any all written notices received by each Company within the last five years from any Taxing Authority that such an taxing authority pertaining to the commencement or contemplation of a Tax audit or examination is pending, or that the Company or any similar proceeding of the Company Subsidiaries was required to file any Tax Return that was not filedsuch Company.
(ii) Neither No Company has been included in any "consolidated," "unitary" or "combined" income or Franchise Tax Return provided for under the Company nor laws of any Company Subsidiary is presently contesting jurisdiction with respect to Taxes for any material Tax liability taxable period for which the statute of the Company or any Company Subsidiary before any court, tribunal or agencylimitations has not expired.
(iii) All material Taxes that There are no tax sharing, tax allocation, indemnification or other agreements in effect between any Company and any other party under which the Company Purchaser or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to could be liable for any employee, independent contractor, creditor, stockholder, member Taxes or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payableclaims of any Person.
(iv) The Each Company and each of the Company Subsidiaries has complied in all material respects with all applicable laws relating to information reporting (and related withholding) returns and record retention requirementsthe payment and withholding of Taxes by or with respect to each such Company and has, within the time and in the manner prescribed by law, withheld and paid over to the proper taxing authorities all Taxes required to have been withheld and paid.
(v) Neither No Company is required to include in income any adjustment pursuant to Section 481(a) of the Company Code (or any comparable provision of state or foreign law) by reason of any change in tax accounting method nor has any Company Subsidiary has waived taxing authority proposed any statute such adjustment or change of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytax accounting method.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any No Company is or has ever been a "United States real property holding corporation" within the meaning of Section 897 of the assets of the Company or any of the Company SubsidiariesCode.
(vii) None No power of the Company and the Company Subsidiaries is a party to attorney has been granted or bound executed by any closing agreementCompany with respect to any matter relating to Taxes, private letter rulings, technical advance memoranda, offer which power of attorney will remain in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after as of the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(eNo election under 341(f) of the Code of which the Merger is also has ever been made to treat any Company as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(ix) Each Company uses the accrual method of tax accounting.
(x) Neither the No Company nor any of the Company Subsidiaries has participated in made an election to be treated as a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawpartnership for U.S. federal income tax purposes.
(xi) Neither No Company has made a disposition of property using the Company nor any installment method of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election reporting pursuant to Section 108(i) 453 of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior which a payment has yet to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)be received.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fisher Scientific International Inc)
Other Tax Matters. (i) No deficiency with respect Except as set forth in Schedule 2.13(c)(i), there is no current or pending (nor has Parent, Seller or any Company received written notice relating to a material amount any proposed) federal or applicable state or foreign or other audits or examinations of Taxes has been proposedinvolving Parent, asserted or assessed against the Company Seller or any Company, the adverse determination of which would materially affect the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax liability of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedCompany.
(ii) Neither Except as set forth in Schedule 2.13(c)(ii), none of Parent, the Company nor Seller or any Company Subsidiary Company, as of the Closing Date, (A) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of any material Taxes with respect to the income, property or operations of any Company, or (B) is presently contesting any material Tax liability with respect to the income, property or operations of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) Except as set forth in Schedule 2.13(c)(iii), no Company has been included in any "consolidated," "unitary" or "combined" Tax Return provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired (other than a group of which the Companies are the only members).
(iv) All material Taxes that the any Company or any of the Company Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither Within the past five (5) years, no Company nor has received a written claim made by any taxing authority in a jurisdiction where any Company Subsidiary has waived does not file Tax Returns that any statute of limitations with respect Company is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any As of the assets of the Closing Date, there will be no tax sharing, allocation, indemnification or similar agreements in effect as between any Company or any predecessor or Affiliate thereof and any other party (including Parent, the Seller and any predecessors or Affiliates thereof) under which any Company or the Buyer or any Affiliate of the Company SubsidiariesBuyer, could be liable for any Taxes or other claims of any Person.
(vii) None The Seller is not a "foreign person" within the meaning of Section 1445 of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing DateCode.
(viii) Neither Schedule 2.13(c)(viii) sets forth each and every taxing jurisdiction in which Tax Returns have actually been filed (or will be filed) on or before the Closing Date by, or with respect to the income, assets or operations of, any Company nor any of within the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)past two years.
(ix) Neither the Company nor has made any of the Company Subsidiaries has been, within the past two years or otherwise election under U.S. Treasury Regulation Section 301.7701-3 to be treated for U.S. federal income tax purposes as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any anything other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date than its default classification as a result of any closing agreement, installment sale or open transaction on or prior disregarded entity after giving effect to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)Conversion.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposedExcept as set forth on Schedule 3.12, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an any audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality locality, and to the Company’s Knowledge, no such audit or other examination is contemplated or pending, nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could reasonably be expected to materially affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability Subsidiaries of the Company Company) provided for under the laws of any jurisdiction or any Company Subsidiary before state or locality with respect to Taxes, for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company Except as set forth on Schedule 3.12, there are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and each of any other party under which Parent, Sub, the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementscould be liable for any Taxes or other claims of any party.
(v) No Indebtedness of the Company or any of its Subsidiaries consists of “corporate acquisition indebtedness” within the meaning of Section 279 of the Code or bears interest that is otherwise nondeductible pursuant to Section 163 of the Code.
(vi) the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it shall be required to take into account any adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality and the Company and its Subsidiaries has no knowledge that the IRS or any other taxing authority has proposed or purported to require any such adjustment or change in accounting method, and the Company has no knowledge or belief that any such adjustment under Section 481 of the Code or the corresponding tax laws of any nation, state or locality will be required of the Company or its subsidiaries upon the completion of, or by reason of, the transaction contemplated by this Agreement.
(vii) Except as set forth on Schedule 3.12, neither the Company nor any of its Subsidiaries, as of the Closing Date, (w) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or any of its Subsidiaries, (x) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any Governmental Entity, (y) has granted any power-of-attorney related to Tax matters to any Person, or (z) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company or any of its Subsidiaries.
(viii) Neither the Company nor any Company Subsidiary of its Subsidiaries has waived been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code at any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyduring the five-year period ending on the date hereof.
(viix) There are no liens for material Taxes (except Taxes not yet due and payable) security interests on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company its Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer that arose in compromise, or any other agreement connection with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan failure (or series of related transactions)” within the meaning of Section 355(ealleged failure) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Codepay any Taxes.
(x) Neither No claim has ever been received from any taxing authority in a jurisdiction where the Company nor or any of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries has participated in a “listed transaction” is, or may be, subject to taxation by that jurisdiction.
(xi) There are no deferred intercompany transactions between the Company and any of its Subsidiaries or between its Subsidiaries and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither 19 with respect to the Company nor any stock of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of stateits Subsidiaries), local and (ii) there are no other transactions or foreign Tax law) made facts existing with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge Company and/or its Subsidiaries which by reason of the Company, any intercompany transaction or excess loss account described in Section 1502 consummation of the Code (or any corresponding provision of state, local or foreign Tax law)transaction contemplated by this Agreement will result in the Company and/or its Subsidiaries recognizing income.
Appears in 1 contract
Other Tax Matters. Except as set forth in Section 3.8(c) of the Company Disclosure Letter:
(1) (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary of the Subsidiaries is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has locality, (ii) no such audit is pending, or to the Company's Knowledge, threatened, and (iii) neither the Company nor any of the Company Subsidiaries has received any written notices from any Taxing Authority that such an audit taxing authority relating to any issue which would have or examination is pending, or that would be reasonably likely to have a material adverse effect on the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any of the Subsidiaries.
(2) Neither the Company Subsidiary nor any of the Subsidiaries (i) has entered into an agreement or waiver in effect as of the Closing Date or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or any of the Subsidiaries, or (ii) is presently contesting the Tax liability of the Company or any of the Subsidiaries before any court, tribunal or agency.
(iii3) Neither the Company nor any of the Subsidiaries has been included in any "consolidated", "unitary" or "combined" Tax Return with any Person (other than the Company or any current Subsidiary) provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(4) All material Taxes that which the Company and each or any of the Company Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv5) The Company and each of the Company Subsidiaries No claim has complied been made in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations writing with respect to Taxes nor agreed the 1995 tax year or subsequent tax years or, to any extension of time the Company's Knowledge, with respect to any tax year prior to the 1995 tax year by any taxing authority in a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of jurisdiction where the Company or any of the Subsidiaries does not file Tax Returns that the Company Subsidiariesor any of the Subsidiaries is or may be subject to taxation by that jurisdiction.
(vii6) None There are no tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any of the Company Subsidiaries or any predecessor or affiliate thereof (other than the Buyer and its affiliates) and any other party under which the Buyer, the Transitory Subsidiary, the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any of the Subsidiaries could be liable for any Taxes or other agreement with claims of any Taxing Authority, in each case that could have a materially adverse effect party after the Closing Date.
(viii7) Neither the Company nor any of the Company Subsidiaries is a party has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Code or is bound by any Tax sharingsimilar provision of the Code or the corresponding tax laws of any nation, allocation state or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)locality.
(ix8) No election under Section 341(f) of the Code has been made or shall be made prior to the Closing Date to treat the Company or any of the Subsidiaries as a consenting corporation, as defined in Section 341 of the Code.
(9) Neither the Company nor any of the Subsidiaries is a party to any agreement that would require (including, without limitation, as a result of the execution and delivery of this Agreement or the consummation of the Merger or any of the other transactions contemplated by this Agreement) the Company or any of the Subsidiaries has been, within the past two years or otherwise as part any affiliate thereof to make any payment that would constitute an "excess parachute payment" for purposes of a “plan (or series of related transactions)” within the meaning of Section 355(e) Sections 280G and 4999 of the Code of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of that would not be deductible pursuant to Section 355(a)(1)(A162(m) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x10) Neither The Company and each Subsidiary have delivered to the Buyer and the Transitory Subsidiary (or made available to the Buyer and the Transitory Subsidiary in the data room established by the Company nor for purposes of the due diligence investigation of the Buyer and the Transitory Subsidiary during the periods of time that the representatives of the Buyer and the Transitory Subsidiary visited the data room) true, complete and correct copies of each of the Tax Returns for income Taxes filed on behalf of the Company and each Subsidiary for the 1998 tax year or subsequent tax years.
(11) (i) There are no deferred intercompany transactions between the Company and any of the Company Subsidiaries has participated in a “listed transaction” or between the Subsidiaries and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) 19 with respect to the stock of the Company or any of the Subsidiaries) which will or may result in the recognition of income upon the consummation of the transaction contemplated by this Agreement, and (ii) there are no other transactions or facts existing with respect to the Company and/or the Subsidiaries which by reason of the consummation of the transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawcontemplated by this Agreement will result in the Company and/or the Subsidiaries recognizing income.
(xi12) Neither No indebtedness of the Company nor or any of the Subsidiaries consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Code.
(13) The Company and each of the Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income is in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement substantial compliance with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made and all material requirements with respect to any taxable period ending on or prior the reporting, withholding, payment of employment Taxes and filing of Tax Returns with respect to tips received by the Closing Date, or, to the Knowledge employees of the Company, any intercompany transaction or excess loss account described in Section 1502 of Company and the Code (or any corresponding provision of state, local or foreign Tax law)Subsidiaries.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount Equalnet and each of Taxes has its Subsidiaries have not been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality with respect to any taxable period for which the statute of limitations has not expired, nor has the Company nor Equalnet or any of the Company its Subsidiaries received any written notices with respect to such taxable periods from any Taxing Authority that such an audit or examination is pending, or that tax authority relating to any issue which could affect the Company Tax liability of Equalnet or any of the Company its Subsidiaries was required to file any Tax Return that was has not filedbeen resolved or paid in full.
(ii) Neither the Company Equalnet nor any Company Subsidiary is presently contesting of its Subsidiaries has been included in any material Tax liability "consolidated," "unitary" or "combined" Equalnet Return (other than Equalnet Returns which include only Equalnet and any Subsidiaries) provided for under the laws of the Company United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that the Company which Equalnet or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between Equalnet, any Subsidiary, or any predecessor or Affiliate of any of them and each any other party under which Orix or Equalnet (or any of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholdingits Subsidiaries) and record retention requirementscould be liable for any Taxes or other claims of any party other than Equalnet or any Subsidiary of Equalnet.
(v) Neither the Company Equalnet nor any Company Subsidiary of its Subsidiaries has waived been required to include in income any statute adjustment pursuant to Section 481 or any similar provision of limitations with respect to Taxes nor agreed to the Code or the corresponding tax laws of any extension nation, state or locality by reason of time with respect to a Tax assessment voluntary change in accounting method initiated by Equalnet or deficiencyany of its Subsidiaries, and the Internal Revenue Service or other taxing authority has not initiated or proposed any such adjustment or change in accounting method.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on Neither Equalnet nor any of the assets its Subsidiaries has, as of the Company Closing Date: entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of Equalnet or any of its Subsidiaries or (B) is presently contesting the Company SubsidiariesTax liability of Equalnet or any of its Subsidiaries before any court, tribunal or agency.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(eNo election under 341(f) of the Code of which has been made or shall be made prior to the Merger is also Closing Date to treat Equalnet as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect Except as set forth on Schedule 3.15(c)(i) to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of Disclosure Letter, the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have has not been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality (and no such audit is pending or contemplated) nor has the Company received any notices from any taxing authority relating to any issue which could affect the Tax liability of the Company.
(i) Except as set forth on Schedule 3.15(c)(ii) to the Company Disclosure Letter, neither any Shareholder nor the Company has, as of the Closing Date, (a) entered into an agreement or waiver or requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(iib) Neither the Company nor any Company Subsidiary is presently contesting any material the Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.
(ii) The Company has not been included in any “consolidated,” “unitary” or “combined” Return provided for under the law of the United States, any non-U.S. jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of No written claim has ever been made by any taxing authority in a jurisdiction where the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsdoes not file Returns that the Company is or may by subject to taxation by that jurisdiction.
(v) Neither There are no tax sharing, allocation, indemnification or similar agreements in effect as between the Company nor or any predecessor or Affiliate thereof and any other party (including a Shareholder and any predecessors or Affiliates thereof) under which Parent or the Company Subsidiary has waived could be liable for any statute Taxes or other claims of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyparty.
(vi) The Company has not applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(vii) The Company is not a party to any agreement that would require it to make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the Code.
(viii) The Company has made a valid S election under Section 1361 of the Code. With respect to the Company, such election was made on July 23, 2002, and was effective as of the year commencing 2002. The Company has also made all such elections required under any analogous provisions of state or local law. The Company will continue to be a valid S corporation through the day immediately preceding the Closing Date.
(ix) The Company has delivered or made available to Parent copies of each of the Returns for income Taxes filed on behalf of the Company since inception of the Company.
(x) There are no liens for material Taxes (except Taxes not yet due and payable) security interests on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any of the Company SubsidiariesTaxes.
(viixi) None of the Company and the Company Subsidiaries (a) There is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
no excess loss account (viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(219 with respect to the stock of the Company) which will or any may result in the recognition of income upon the consummation of the transaction contemplated by this Agreement, and (b) there are no other transactions or facts existing with respect to the Company which by reason of the consummation of the transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawcontemplated by this Agreement will result in the Company recognizing income.
(xixii) Neither the Company nor any No indebtedness of the Company Subsidiaries will be required to include any material item consists of income in, or to exclude any material item “corporate acquisition indebtedness” within the meaning of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) 279 of the Code Code.
(or any corresponding provision of state, local or foreign Tax lawxiii) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge None of the Company, any intercompany transaction or excess loss account described in Shareholders is a “foreign person” within the meaning of Section 1502 1445 of the Code (or any corresponding provision of state, local or foreign Tax law)Code.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount Neither the Seller nor any of Taxes its Subsidiaries has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an any audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality and no such audit or other examination is contemplated or pending, nor has the Company nor Seller or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could materially affect the Company Tax liability of the Seller or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company Seller nor any Company Subsidiary is presently contesting of its Subsidiaries has been included in any material Tax liability “consolidated,” “unitary” or “Combined” Return (other than Returns which include only the Seller and any Subsidiaries of the Company Seller) provided for under the laws of any jurisdiction or any Company Subsidiary before state or locality with respect to Taxes, for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company Seller or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Seller, any Subsidiary, or any predecessor or Affiliate of any of them and each any other party under which Parent or Buyer could be liable for any Taxes or other claims of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsany party.
(v) Neither the Company Seller nor any Company Subsidiary of its Subsidiaries has waived any statute of limitations with respect to Taxes nor applied for, been granted, or agreed to any extension accounting method change for which it shall be required to take into account any adjustment under Section 481 of time with respect the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality and neither the Seller nor any of its Subsidiaries has any knowledge that the IRS or any other taxing authority has proposed or purported to a Tax assessment require any such adjustment or deficiencychange in accounting method, and the Seller has no knowledge or belief that any such adjustment under Section 481 of the Code or the corresponding tax laws of any nation, state or locality will be required of the Seller or its subsidiaries upon the completion of, or by reason of, the transaction contemplated by this Agreement.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on Neither the Seller nor any of the assets its Subsidiaries, as of the Company Closing Date, (w) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Seller or any of its Subsidiaries, (x) is presently contesting the Company Tax liability of the Seller or any of its Subsidiaries before any Governmental Entity, (y) has granted any power-of-attorney related to Tax matters to any Person, or (z) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Seller or any of its Subsidiaries.
(vii) None There are no material security interests on any of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer Purchased Assets that arose in compromise, or any other agreement connection with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Datefailure (or alleged failure) to pay any Taxes.
(viii) Neither No claim has ever been made by any taxing authority in a jurisdiction where the Company nor Seller or any of its Subsidiaries does not file Tax Returns that the Company Seller or any of its Subsidiaries is a party is, or may be, subject to or is bound taxation by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)that jurisdiction.
(ix) Neither No claim has ever been made by any taxing authority in a jurisdiction where the Company nor Seller or any of its Subsidiaries does not file Returns that the Company Subsidiaries has been, within the past two years Seller or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) is or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawmay be subject to taxation by that jurisdiction.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any As of the Company Subsidiaries and remains unpaiddate of this Agreement, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an any material audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality and, to the knowledge of the Company or any of its Subsidiaries, no such audit or other examination is contemplated or pending, nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could materially affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.its Subsidiaries;
(ii) Neither the Company nor any Company Subsidiary is presently contesting of its Subsidiaries has been included in any material Tax liability of "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company or any Company Subsidiary before Subsidiaries of the Company) provided for under the laws of any courtjurisdiction with respect to Taxes, tribunal or agency.for any taxable period for which the statute of limitations has not expired;
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdershareholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.;
(iv) The There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Parent, Sub, the Company and each or any of its Subsidiaries could be liable for any Taxes or other claims of any such party;
(v) No indebtedness of the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Code or bears interest that is otherwise nondeductible pursuant to Section 163 of the Code;
(vvi) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it shall be required to take into account any adjustment pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality;
(vii) Neither the Company Subsidiary nor any of its Subsidiaries, as of the Closing Date, (w) has waived entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations with respect relating to the payment or collection of Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of its Subsidiaries, (x) as of the Company Subsidiaries.
(vii) None date of this Agreement, is presently contesting the Tax liability of the Company and or any of its Subsidiaries before any Governmental Entity, (y) has granted a power-of-attorney related to Tax matters to any Person, or (z) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.of its Subsidiaries;
(viii) Neither the Company nor any of the Company its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” "United States real property holding corporation" within the meaning of Section 355(e897(c)(2) of the Code;
(ix) No election under 341(f) of the Code has been made or shall be made prior to the earliest of which the Merger is also Acceptance Date, Compulsory Completion Date, Scheme Effective Date and the termination of this Agreement pursuant to Section 8.1 to treat the Company or any of its Subsidiaries as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) 341 of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.;
(x) Neither As of the date of this Agreement, no claim has ever been made by any taxing authority in a jurisdiction where the Company nor or any of the Company its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).does
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any the Company Subsidiary Subsidiaries is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company Subsidiaries by any Governmental Entity, nor any of have the Company or the Company Subsidiaries received any written notices from any Taxing Authority taxing authority that such an audit or examination is pending. No deficiencies for Taxes of the Company or the Companies Subsidiaries have been claimed, proposed or assessed by any Governmental Entity. Neither the Company nor any Company Subsidiary has been informed by any jurisdiction in which the Company or the Company Subsidiary did not file a Tax Return that the jurisdiction believes that the Company or any of the Company Subsidiaries Subsidiary was required to file any Tax Return that was not filedfiled or is subject to Tax in such jurisdiction.
(ii) Neither the Company nor the Company Subsidiaries (A) have (1) entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiary or the Company Subsidiaries that has not expired, (2) requested any extension of time within which to file any Tax Return that has not yet been filed, or (3) executed or filed any power of attorney with any taxing authority that is still in effect, or (B) is presently contesting any material Tax liability of the Company or any the Company Subsidiary Subsidiaries before any court, tribunal or agencyGovernmental Entity.
(iii) All Except as set forth on Section 3.12 of the Company Disclosure Letter, all material Taxes that the Company or any of the Company Subsidiaries is (or was) was required by Applicable Law to withhold or collect have been duly withheld or collected, and have been paid over to the proper Governmental Entity to the extent due and payable, and each of the Company and the Company Subsidiaries has complied with all material information reporting and backup withholding requirements, including the maintenance of required records with respect thereto, in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payableparty.
(iv) The Company and each has not been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Company Subsidiaries has complied Code during the applicable period specified in all material respects with all information reporting (and related withholdingSection 897(c)(1)(A)(ii) and record retention requirementsof the Code.
(v) Neither the Company nor any Company Subsidiary is or has waived ever been a member of an affiliated group with which it has filed (or been required to file) consolidated, combined, unitary or similar Tax Returns, other than a group of which the common parent is the Company. Neither the Company nor any statute Company Subsidiary (A) has any actual or potential liability under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of limitations with respect to Taxes nor agreed federal, state, local or foreign Law), as a transferee or successor, pursuant to any extension contractual obligation, or otherwise for any Taxes of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of Person other than the Company or any of the Company Subsidiaries.
Subsidiary, or (viiB) None of the Company and the Company Subsidiaries is a party to or bound by any closing Tax indemnity, Tax sharing, Tax allocation or similar agreement.
(vi) The Company has delivered or made available to the Parent (A) complete and correct copies of all Tax Returns of the Company and each Company Subsidiary relating to Taxes for all taxable periods for which the applicable statute of limitations has not yet expired, (B) complete and correct copies of all private letter rulings, technical advance memorandarevenue agent reports, offer in compromiseinformation document requests, notices of proposed deficiencies, deficiency notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests and any similar documents submitted by, received by, or agreed to by or on behalf of the Company or any Company Subsidiary relating to Taxes for all taxable periods for which the statute of limitations has not yet expired, and (C) complete and correct copies of all material agreements, rulings, settlements or other agreement Tax documents with or from any Taxing AuthorityGovernmental Entity relating to Tax incentives of the Company or any Company Subsidiary.
(vii) Neither the Company nor any Company Subsidiary has made any payment, in each case is obligated to make any payment, or is a party to any Contract, arrangement or plan that could have a materially adverse effect after obligate it to make any payment that may be treated as an “excess parachute payment” under Section 280G of the Closing DateCode (without regard to Sections 280G(b)(4) and 280G(b)(5) of the Code).
(viii) Neither the Company nor any Company Subsidiary has distributed to its stockholders or security holders stock or securities of a controlled corporation, nor has stock or securities of the Company Subsidiaries is or any Company Subsidiary been distributed, in a party transaction to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any which Section 355 of the Company Subsidiaries has been, within Code applies (A) in the past two (2) years prior to the date of this Agreement or (B) in a distribution that could otherwise as constitute part of a “plan (plan” or “series of related transactions)” (within the meaning of Section 355(e) of the Code of which Code) that includes the Merger is also a part, a “distributing corporation” transactions contemplated by this Agreement
(ix) There are no Liens or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) other encumbrances with respect to Taxes upon any of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 assets or properties of the CodeCompany or any Company Subsidiary, other than with respect to Taxes not yet due and payable.
(x) Neither All related party transactions involving the Company nor or any Company Subsidiaries are at arm’s length in compliance with Section 482 of the Company Subsidiaries has participated in a “listed transaction” within Code and the meaning of Treasury Regulations Section 1.6011-4(b)(2promulgated thereunder and any comparable provision of any Tax Law. The Company and each Company Subsidiary has maintained documentation (including any applicable transfer pricing studies) or in connection with such related party transactions in accordance with Sections 482 and 6662 of the Code and the Treasury Regulations promulgated thereunder and any other transaction requiring disclosure under analogous provisions comparable provision of state, local or foreign any Tax lawLaw.
(xi) Neither the Company nor any Company Subsidiary has engaged in a “reportable transaction” as set forth in Treasury Regulation section 1.6011-4(b) or a “listed transaction” as set forth in Treasury Regulation section 301.6111-2(b)(2) or any analogous provision of foreign, state or local Law. The Company and each Company Subsidiary has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code.
(xii) Each Company Subsidiaries will be required to include any material item of income inplan, agreement or to exclude any material item of deduction from, taxable income other arrangement that is a “nonqualified deferred compensation plan” (as defined in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i409A(d)(1) of the Code (or any corresponding provision of stateCode) has been operated since January 1, local or foreign Tax law) made 2005 in compliance with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in then applicable guidance under Section 1502 409A of the Code and since January 1, 2009 each such plan, agreement or arrangement has been documented in compliance with then applicable guidance under Section 409A of the Code. No stock option or equity unit option granted by the Company had an exercise price that was or may have been less than the fair market value of the underlying stock or equity units (as the case may be) on the date such option was granted, or has any corresponding provision feature for the deferral of statecompensation other than the deferral of recognition of income until the later of exercise or disposition of such option. The Company’s past and current stock option grant practices (A) complied with all applicable Company stock plans and applicable Laws, local (B) have been fairly presented in accordance with GAAP in the Company’s financial statements, and (C) are not and have not been the subject of any internal investigation, review or foreign Tax law)inquiry.
Appears in 1 contract
Samples: Merger Agreement (Bottomline Technologies Inc /De/)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against Neither the Company or nor any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on to the books and records Knowledge of the Company and Company, without inquiry, the Company Mexico Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of a material amount of Taxes of the Company or such the Company Subsidiary Subsidiaries or, to the Knowledge of the Company, without inquiry, the Mexico Subsidiaries by a Taxing Authority the tax authorities of any nation, state or locality (“Tax Authority”) nor has have the Company nor any or the Company Subsidiaries or, to the Knowledge of the Company Company, without inquiry, the Mexico Subsidiaries received any written notices from any Taxing Tax Authority that such an audit or examination is pending.
(ii) To the Knowledge of the Company, or that no Taxes, other than those arising in the Ordinary Course of Business, are proposed to be assessed against the Company or any of the Company Subsidiaries was required or to file the Knowledge of the Company without inquiry against the Mexico Subsidiaries and no potential Tax deficiencies are expected to be raised against the Company or any of the Company Subsidiaries by any Tax Return Authority. No claim has ever been made by a Tax Authority in a jurisdiction where the Company or any Company Subsidiary or, to the Knowledge of the Company, without inquiry, the Mexico Subsidiaries does not file Returns that was not filedit is or may be subject to taxation by that jurisdiction. There are no Liens other than Permitted Liens on any of the Assets that arose in connection with any failure to pay any Tax.
(iiiii) Neither the Company nor any of the Company Subsidiary Subsidiaries or, to the Knowledge of the Company, without inquiry, the Mexico Subsidiaries (A) have entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes of the Company or the Company Subsidiaries or, to the Knowledge of the Company, without inquiry, the Mexico Subsidiaries that has not expired or (B) is presently contesting any material Tax liability of the Company or any the Company Subsidiary Subsidiaries or to the Knowledge of the Company, without inquiry, the Mexico Subsidiaries before any court, tribunal or agency.
(iiiiv) All material Taxes that the Company or any the Company Subsidiaries or, to the Knowledge of the Company Company, without inquiry, the Mexico Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each Less than 50% of the value of the gross assets of the Company Subsidiaries has complied consists of U.S. real property interests or less than 90% of the value of the gross assets of the Company consists of U.S. real property interests plus any cash or cash equivalents (as defined in all material respects with all information reporting (and related withholding) and record retention requirementsTreasury Regulation § 1.1445-11T(d)(1)).
(vvi) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, without inquiry, the Mexico Subsidiaries (A) has any intercompany transaction liability for the Taxes of any other Person solely as a result of being a member of an affiliated, consolidated, combined, unitary or excess loss similar group or as a result of transferee or successor liability, (B) has any liability for the payment of any Taxes as a result of being a party to a Tax sharing agreement or as a result of an obligation to indemnify any other Person with respect to the payment of Taxes, or (C) is a party to any advance pricing agreement, closing agreement or other agreement relating to Taxes with any Tax Authority.
(vii) Neither Core Metals Group Canada Holdings, Inc. nor Masterloy Products Company has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account described in Section 1502 any adjustment under section 481 of the Code (or any corresponding similar provision of statesuch Code or of the corresponding Tax laws of any municipality, local state or foreign country. To the Knowledge of the Company, no Tax law)Authority has proposed any such adjustment or change in method of accounting nor will any such adjustment or change be required by reason of the consummation of the Transactions contemplated by this Agreement.
(viii) The Company is, and continuously since at least February 13, 2008 has been, a partnership for U.S. federal income Tax purposes; and each Company Subsidiary (other than Core Metals Group Canada Holdings, Inc.) is, and continuously since at least February 13, 2008 has been, disregarded for U.S. federal income Tax purposes as an entity separate from its owner. No election has been filed to treat the Company or the Company Subsidiaries (other than Core Metals Group Canada Holdings, Inc.) as a corporation for U.S. federal income Tax purposes.
(ix) The Company and the Company Subsidiaries have filed all required Reports of Foreign Bank and Financial Accounts on Form TD F 90-22.1 or such other form as may be required.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Globe Specialty Metals Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently of the Subsidiaries has been the subject of an audit or other examination relating of Taxes by any Governmental Authority with respect to any taxable period for which the payment statute of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nationlimitations has not expired, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Subsidiaries received any written notices with respect to such taxable periods relating to any issue which could affect the Tax liability of the Company or any of the Subsidiaries was required to file any Tax Return that was has not filedbeen resolved or paid in full.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Subsidiaries has been included as a member in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company and any or all of the Subsidiaries) with respect to Taxes for any Company Subsidiary before any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company Subsidiaries is (or was) has been required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Cirrus or the Company and each or any of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementscould be liable for any Taxes of any Person.
(v) Neither the Company nor any of the Subsidiaries has been required to include in income any adjustment pursuant to Section 481 or any similar provision of the Code or any other corresponding applicable tax laws by reason of a voluntary change in accounting method initiated by the Company Subsidiary or any of the Subsidiaries, and neither the Internal Revenue Service nor any other taxing authority has waived initiated or proposed any such adjustment or change in accounting method.
(vi) Neither the Company nor any of the Subsidiaries (A) has entered into an agreement or waiver extending any statute of limitations with respect relating to the payment or collection of Taxes nor of the Company or any of the Subsidiaries or agreed to any extension of time with respect to a Tax assessment or deficiency.
, or (viB) There are no liens for material Taxes (except Taxes not yet due and payable) on any of is presently contesting the assets Tax liability of the Company or any of the Company Subsidiaries.
(vii) No election under 341(f) of the Code has been made to treat the Company as a consenting corporation, as defined in Section 341(f) of the Code.
(viii) None of the Company and the Company Subsidiaries has made any payments, is obligated to make any payments, or is a party to or bound by any closing agreementagreement that under certain circumstances could obligate it to make any payments, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment will not be deductible under Section 355 280G of the Code.
(xix) Neither The Company has not redeemed any Company Shares in a manner that would cause the transactions contemplated hereby to fail to qualify as a reorganization under Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code. The Company has not redeemed any Company Shares or made any distributions, and no Person related to the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Regulation Section 1.60111.368-4(b)(21(e)(3)(i)(B) or has acquired any other transaction requiring disclosure under analogous provisions Company Shares, in a manner that would cause the transactions contemplated hereby to violate the continuity of state, local or foreign Tax lawinterest requirement set forth in Treasury Regulation Section 1.368-1(e).
(xix) Neither the The Company nor any of the Company Subsidiaries will be required to include any material item of income inoperates at least one significant historic business line, or to exclude any material item owns at least a significant portion of deduction fromits historic business assets, taxable income in any taxable period (or portion thereof) ending after each case within the Closing Date as a result meaning of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law1.368-1(d).
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit audit, administrative or judicial Tax proceedings, or other examination relating to the assessment, reassessment, payment of material Taxes of by it the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has Tax authorities and neither the Company nor any of the Company Subsidiaries received Subsidiary has received, any written notices from any Taxing Authority taxing authority that such an audit or examination is pending, contemplated or pending for any amount of Tax that the Company has not been fully paid or any of the Company Subsidiaries was required to file any Tax Return that was not filedsettled.
(ii) Neither the Company nor any Company Subsidiary (A) has entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or the Company Subsidiaries, in each case, that has not expired or (B) is presently contesting any material Tax liability of the Company or any Company Subsidiary applicable to it before any court, tribunal or agencyGovernmental Entity.
(iii) All material Taxes that each of the Company or any of and the Company Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, collected and have been paid over to the proper authorities to the extent due and payable. Each of the Company and the Company Subsidiaries has charged, collected and remitted on a timely basis all Taxes as required under applicable law on any sale, supply or delivery whatsoever, made by it.
(iv) The Company and each of Neither the Company Subsidiaries nor any Company Subsidiary has complied in all material respects with all information reporting been a member of an affiliated group filing a consolidated federal income Tax Return (and related withholding) and record retention requirementsother than a group the common parent of which was the Company or a Company Subsidiary).
(v) Neither the Company nor any Company Subsidiary (A) has waived any statute liability for the Taxes of limitations with respect to Taxes nor agreed any Person (other than the Company or the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any corresponding provision of state, local or non-U.S. Tax law), or as a transferee or successor or (B) is or has been a party to any extension “listed transaction,” as defined in Section 6707A(c)(2) of time with respect to a Tax assessment or deficiencythe Code.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets None of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreementTax allocation or Tax sharing agreement (other than agreements entered into in the ordinary course of business the primary focus of which is not Taxes) with any Person other than the Company and the Company Subsidiaries, private letter rulings, technical advance memoranda, offer in compromise, and none has any current or potential contractual obligation to indemnify any other Person with respect to Taxes under any Tax allocation or Tax sharing agreement with any Taxing Authority, (other than agreements entered into in each case that could have a materially adverse effect after the Closing Dateordinary course of business the primary focus of which is not Taxes).
(viiivii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries Subsidiary will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in for any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any (A) change in method of accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any for a taxable period ending on or prior to the Closing DateDate under Code Section 481(c) (or any corresponding or similar provision of state, or, local or foreign law) executed on or prior to the Knowledge Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign law) executed on or prior to the Company, Closing Date; (C) deferred intercompany gain or any intercompany transaction or excess loss account described in Treasury Regulation under Code Section 1502 (or any corresponding or similar provision of state, local or foreign law); (D) installment sale made prior to the Closing Date; (E) prepaid amount received or deferred revenue accrued on or prior to the Closing Date; (F) election under Code Section 108(i) (or any corresponding or similar provision of state, local or foreign law); or (G) use of an improper method of accounting for a taxable period on or prior to the Closing Date.
(viii) Neither the Company nor any Company Subsidiary has (A) participated in any listed transaction within the meaning of Treasury Regulations Section 1.6011-4(b) (or any similar provision of any Tax Law), or (B) taken any reporting position on a Tax Return, which reporting position (1) if not sustained would be reasonably likely, absent disclosure, to give rise to a penalty for substantial understatement of federal income Tax under Section 6662 of the Code (or any similar provision of any Tax Law), and (2) has not adequately been disclosed on such Tax Return in accordance with Section 6662(d)(2)(B) of the Code (or any similar provision of any Tax Law).
(ix) Since the Acquisition Date, neither the Company nor any Company Subsidiary has received a written claim from a Tax authority in a jurisdiction it does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(x) Since the Acquisition Date, none of the Company or the Company Subsidiaries 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 Code Section 355 or Code Section 361.
(xi) The Company has not been a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable period specified in Code Section 897(c)(1)(A)(ii).
(xii) There are no limitations on the utilization of the net operating losses, tax credit carryovers or other tax attributes of the Company or any Company Subsidiary under Section 382 through Section 384 of the Code (or any corresponding or similar provisions of applicable law) or the separate return limitation year rules under the consolidated return provisions of the Treasury Regulations (or any corresponding or similar provisions of applicable law), other than any such limitation arising as a result of the consummation of the transactions contemplated by this Agreement.
(xiii) There are no transactions or events that have resulted, and no circumstances existing, which could result in the application to any Company Subsidiary resident in Canada (for purposes of the ITA) of sections 80, 80.01, 80.02, 80.03, 80.04 of the ITA or any analogous provision of stateany comparable law of any province or territory of Canada.
(xiv) No Company Subsidiary resident in Canada (for purposes of the ITA) has incurred any deductible outlay or expense owing to a Person not dealing at arm’s length (for purposes of the ITA) with it, local the amount of which would, in the absence of an agreement filed under paragraph 78(1)(b) of the ITA, be included in its income for Canadian income tax purposes for any taxation year or fiscal period beginning on or after the Closing Date under paragraph 78(1)(a) of the ITA or any analogous provision of any comparable law of any province or territory of Canada.
(xv) No Company Subsidiary resident in Canada (for purposes of the ITA) has acquired property from a Person not dealing at arm’s length (for purposes of the ITA) with it in circumstances that would result in it becoming liable to pay Taxes of such Person under subsection 160(1) of the ITA or any analogous provision of any comparable law of any province or territory of Canada.
(xvi) None of the Shares is “taxable Canadian property” within the meaning of the ITA, other than taxable Canadian property that is “excluded property” as defined in section 116(6) of the ITA. None of the Shares derives, and none of them has at any time within the past 60 months derived, more than 50% of its fair market value directly or indirectly from or from any combination of (A) real or immovable property situated in Canada, (B) Canadian resource properties (as defined in the ITA), (C) timber resource properties (as defined in the ITA), and (D) options in respect of, or interest in, or for civil law, a right in, property described in any of the immediately preceding clauses (A) to (C), whether or not the property exists.
(xvii) Neither the Company nor any Company Subsidiary has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty or convention), or otherwise been subject to taxation in any country other than the country of its formation.
(xviii) The Company and the Company Subsidiaries are, and have been since the Acquisition Date, in material compliance with transfer pricing rules under Code Section 482, section 247 of the ITA and any other transfer pricing law of a country in which the Company or any Company Subsidiary is subject to taxation.
(xix) No “controlled foreign corporation” (as defined in Code Section 957) of the Company or any Company Subsidiary has any investment in “United States property” (as defined in Code Section 956(c) and Code Section 956(d)) as of the Closing Date.
(xx) Since the Acquisition Date, neither the Company nor any Company Subsidiary has made any entity classification elections as provided in Treasury Regulation Section 301.7701-3.
(xxi) Since the Acquisition Date, neither the Company nor any Company Subsidiary has requested or received a ruling from any Tax law)authority or signed a closing or other agreement with any Tax authority.
(xxii) There are no Liens for Taxes (other than for Taxes not yet due and payable) upon the assets of the Company or any Company Subsidiary.
Appears in 1 contract
Samples: Merger Agreement (Jarden Corp)
Other Tax Matters. Except as set forth in Section 4.8(b) of the Sellers’ Disclosure Letter:
(i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary of its Subsidiaries is currently the subject of an audit audit, proceeding or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority taxing authorities of any nation, state or locality nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that taxing authority relating to any material issue and neither the Company nor any of its Subsidiaries is otherwise aware of any such an audit audits, proceedings or examinations, and no material issue has been raised by any taxing authority in any prior examination is pending, or that of the Company or any of its Subsidiaries which, by application of the Company Subsidiaries was required same or similar principles, would reasonably be expected to file result in a proposed deficiency for any Tax Return that was not filed.subsequent taxable period;
(ii) Neither neither the Company nor any of its Subsidiaries has (x) entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of an amount of Taxes of the Company Subsidiary or any of its Subsidiaries that has not expired or (y) is presently contesting any material a Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency.;
(iii) All material all Taxes that the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable., except for such Taxes which, in the aggregate, would not be material to the Company and its Subsidiaries taken as a whole; and
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement member of an affiliated group (other than such an agreement or arrangement exclusively between or among a group the Company and common parent of which is the Company Subsidiaries).
(ixCompany) Neither the Company nor any filing a consolidated U.S. federal income tax return. For purposes of the Company representations and warranties contained in this Section 4.8, the sale of Foreign Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of pursuant to Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor 6.13 and any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any tax election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect 6.10 shall be deemed not to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)have occurred.
Appears in 1 contract
Other Tax Matters. (ia) No deficiency with respect Xxxxxx and its subsidiaries and MergerCo shall reasonably cooperate, and shall cause their respective affiliates, officers, employees, agents, auditors and other representatives reasonably to a material amount cooperate, in preparing and filing all Tax Returns for Pre-Closing Tax Periods. Neither MergerCo nor any Decorative Products Company shall file or cause to be filed any amended return of Taxes has been proposed, asserted or assessed against the Company Xxxxxx or any of its affiliates for any Pre-Closing Tax Period without the Company Subsidiaries and remains unpaidprior written consent of Xxxxxx, except for such deficiencies that are being contested, which consent may not be unreasonably withheld or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not fileddelayed.
(iib) Neither The amount or economic benefit of any refunds, credits or offsets of Taxes of any Decorative Products Company shall be for the account of Xxxxxx or its affiliates to the extent such refund, credit or offset relates to any Taxes for which Xxxxxx has indemnified MergerCo. The amount or economic benefit of any refunds, credits or offsets of Taxes of any Decorative Products Company nor any Company Subsidiary shall be for the account of MergerCo to the extent such refund, credit or offset relates to Taxes for which MergerCo has otherwise indemnified Xxxxxx. Each party shall forward, and shall cause its affiliates to forward, to the party entitled pursuant to this Section 12.2(b) to receive the amount or economic benefit of a refund, credit or offset to Tax, the amount of such refund, or the economic benefit of such credit or offset to Tax, within ten days after such refund is presently contesting any material received or after such credit or offset is allowed or applied against other Tax liability liability, as the case may be. In the event such refund, credit or offset is later disallowed by the IRS, the account of such party shall be debited, such party shall repay the amount of the Company refund, credit or any Company Subsidiary before any court, tribunal or agencyoffset previously received plus interest computed at the rate of the prevailing federal rate for tax refunds.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vic) There are shall be no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party withholding pursuant to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) 1445 of the Code) , provided that Xxxxxx delivers to MergerCo at the Closing a certificate complying with the Code and Treasury Regulations, in a distribution of stock intended form and substance reasonably satisfactory to qualify for tax-free treatment MergerCo, duly executed and acknowledged, certifying that the transactions contemplated hereby are exempt from withholding under Section 355 1445 of the Code.
(xd) Neither Except as provided in Schedule 12.2, Xxxxxx shall cause all tax allocation agreements or tax sharing agreements with respect to each of the Company nor Decorative Products Companies to be terminated as of the Closing Date, and shall ensure that such agreements are of no further force or effect as to any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending Decorative Products Companies on and after the Closing Date as a result of and that there shall be no further liabilities or obligations imposed on any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or Decorative Products Companies under any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)such agreements.
Appears in 1 contract
Samples: Recapitalization Agreement (Imperial Home Decor Group Holdings I LTD)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the The Company and the Company each of its Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently ----------------- have not been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality with respect to any taxable period for which the statute of limitations has not expired, nor has the Company nor or any of the Company its Subsidiaries received any written notices with respect to such taxable periods from any Taxing Authority that such an audit or examination is pending, or that tax authority relating to any issue which could affect the Tax liability of the Company or any of the Company its Subsidiaries was required to file any Tax Return that was has not filedbeen resolved or paid in full.
(ii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability Subsidiaries of the Company Company) provided for under the laws of the United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Parent, Sub or the Company and each (or any of its Subsidiaries) could be liable for any Taxes or other claims of any party other than the Company or any Subsidiary of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsCompany.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets No indebtedness of the Company or any of its Subsidiaries consists of "corporate acquisition indebtedness" within the Company Subsidiariesmeaning of Section 279 of the Code.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiivi) Neither the Company nor any of its Subsidiaries has been required to include in income any adjustment pursuant to Section 481 or any similar provision of the Code or the corresponding tax laws of any nation, state or locality by reason of a voluntary change in accounting method initiated by the Company Subsidiaries is a party to or is bound by any Tax sharingof its Subsidiaries, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)Internal Revenue Service or other taxing authority has not initiated or proposed any such adjustment or change in accounting method.
(ixvii) Neither the Company nor any of its Subsidiaries has, as of the Closing Date: (A) entered into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company or any of its Subsidiaries has beenor (B) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any court, within the past two years tribunal or otherwise as part of a “plan agency.
(or series of related transactions)” within the meaning of Section 355(eviii) No election under 341(f) of the Code of which has been made or shall be made prior to the Merger is also Closing Date to treat the Company as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Merger Agreement (Getronics N V)
Other Tax Matters. Except as set forth in Section 3.18 of the _________________ Company Disclosure Letter:
(i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an audit or other examination relating to of Taxes for any taxable period after December 31, 1994 by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could reasonably be expected to affect materially the Tax liability of the Company or any of its Subsidiaries after the Company Subsidiaries was required to file any Tax Return that was not fileddate thereof.
(ii) Neither the Company nor any of its Subsidiaries, as of the Effective Time, (A) has entered into an outstanding agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of material Taxes of the Company Subsidiary or any of its Subsidiaries, (B) is presently contesting any material the Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency.
agency or (iiiC) All material Taxes that the Company has applied for and/or received a ruling or any of the Company Subsidiaries is (determination from a taxing authority regarding a past or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets prospective transaction of the Company or any of its Subsidiaries which could affect the Tax liability of the Company Subsidiariesor any of its Subsidiaries after the date hereof.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiiiii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return of any other Person provided for under the Company Subsidiaries is a party law of the United States, any foreign jurisdiction or any state or locality with respect to or is bound by material Taxes for any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among taxable period for which the Company and the Company Subsidiaries)statute of limitations has not expired.
(ixiv) No claim has ever been made by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file material Returns that the Company or any of its subsidiaries is or may be subject to taxation by that jurisdiction;
(v) There are no tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any predecessor or affiliate thereof and any other Person under which the Company or any of its Subsidiaries could be liable for any material Taxes of any other Person.
(vi) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account after the date hereof any material adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(vii) No election under Section 341(f) of the Code has been made or shall be made prior to the Effective Time to treat the Company or any of its subsidiaries as a consenting corporation, as defined in Section 341 of the Code.
(viii) No material amount of indebtedness of the Company or any of its Subsidiaries has been, within the past two years or otherwise as part consists of a “plan (or series of related transactions)” "corporate acquisition indebtedness" within the meaning of Section 355(e) 279 of the Code of which the Merger Code.
(ix) The Company is also not a part, a “distributing "United States real property holding corporation” or a “controlled corporation” (" within the meaning of Section 355(a)(1)(A897(c)(2) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x) Neither The Company has delivered to Acquiror correct and complete copies of all United States federal, state and all foreign income Tax Returns (to the extent filed as of the date hereof or, if not filed, correct and complete copies of extensions thereof), examination reports, statements of deficiencies assessed against or agreed to by the Company nor and any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) its Subsidiaries, or any other transaction requiring disclosure under analogous provisions of statesimilar correspondence from a taxing authority, local or foreign Tax lawrelating to taxable years 1997, 1998 and 1999.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. (A) Neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an audit or other examination relating to the payment of material Taxes of the Company by any Taxing Authority; (B) no such audit is contemplated or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has pending; and (C) neither the Company nor any of the Company its Subsidiaries has received any written notices notices, orally or in writing, from any Taxing Authority that such an audit or examination is pending, or that relating to any issue which could affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any of its Subsidiaries, as of the Closing Date, (A) has entered into a Contract or waiver or been requested to enter into a Contract or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiary or any of its Subsidiaries, (B) is the beneficiary of any extension of time to file any Tax Return or pay any Tax, (C) is presently contesting any material the Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency, (D) has granted a power-of-attorney relating to Tax matters to any person or (E) has applied for and/or received a ruling or determination from a Taxing Authority regarding a past or prospective transaction of the Company or any of its Subsidiaries.
(iii) All material Taxes that Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the Law of the United States, any foreign jurisdiction or any of state or locality other than such Tax Returns that include only the Company and any of its Subsidiaries and no other entities.
(iv) All Taxes which the Company and each of its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company payable and each of have been correctly and timely included in the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsappropriate Tax Return.
(v) Neither No claim has ever been made, orally or in writing, by any Taxing Authority in a jurisdiction where the Company nor or any of its Subsidiaries does not file Tax Returns that the Company Subsidiary has waived or any statute of limitations with respect its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of tax sharing, allocation, indemnification or similar Contracts in effect as between the Company or any of its Subsidiaries or any predecessor or affiliate thereof and any other party (including the Stockholders and any predecessors or affiliates thereof) under which the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any of its Subsidiaries could be liable for any Taxes or other agreement with claims of any Taxing Authority, in each case that could have a materially adverse effect party after the Closing Date.
(viiivii) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Internal Revenue Code or any similar provision of the Internal Revenue Code or the corresponding tax Laws of any nation, state or locality.
(viii) No election under Section 341(f) of the Internal Revenue Code has been made or shall be made prior to the Closing Date to treat the Company or any of its Subsidiaries is as a party to or is bound by any Tax sharingconsenting corporation, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among as defined in Section 341 of the Company and the Company Subsidiaries)Internal Revenue Code.
(ix) Neither the Company nor any of its Subsidiaries is a party to any Contract that would require the Company or any of its Subsidiaries has beenor any affiliate thereof to make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the Internal Revenue Code.
(x) There are no security interests on any of the assets of the Company or any Subsidiary that arose, or as a result of the transactions contemplated by this Agreement could arise, in connection with any failure (or alleged failure) to pay any Taxes.
(xi) (A) There are no deferred intercompany transactions between the Company and any of its Subsidiaries or between its Subsidiaries and there is no excess loss account (within the past two years meaning of Treasury Regulations Section 1.1502-19 with respect to the stock of the Company or any of its Subsidiaries) which will or may result in the recognition of income upon the consummation of the transaction contemplated by this Agreement, and (B) there are no other transactions or facts existing with respect to the Company and/or its Subsidiaries which by reason of the consummation of the transaction contemplated by this Agreement or otherwise as part will result in the Company and/or its Subsidiaries recognizing income or reducing any deduction in periods following the Closing Date.
(xii) No Indebtedness of a the Company or any of its Subsidiaries consists of “plan (or series of related transactions)corporate acquisition indebtedness” within the meaning of Section 355(e) 279 of the Code Internal Revenue Code. The transactions contemplated in connection with this Agreement will not result in any cancellation of which indebtedness realized by the Merger is also a partCompany, a “distributing corporation” any of its Subsidiaries, 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 tax-free treatment under Section 355 of the CodePurchaser.
(xxiii) Neither the Company nor any of the Company its Subsidiaries has participated in been a “listed transactionUnited States real property holding corporation” within the meaning of Treasury Regulations Section 1.6011897(c)(2) of the Internal Revenue Code at any time during the five-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawyear period ending on the date hereof.
(xixiv) Neither There is currently no limitation on the Company nor any utilization of the net operating losses, built-in losses, capital losses, Tax credits or other tax attributes of the Company or its Subsidiaries will be required to include any material item of income inunder Sections 382, 383 or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) 384 of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)Internal Revenue Code.
Appears in 1 contract
Other Tax Matters. (a) Purchaser shall not cause or permit (and shall preclude each member of the Company Group from causing or permitting)
(i) No deficiency with respect to the filing or amendment of any Tax Return of a material amount of Taxes has been proposed, asserted or assessed against the Company or any member of the Company Subsidiaries and remains unpaidGroup for a Pre-Closing Tax Period, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor making or changing of any Company Subsidiary Tax election (other than an election that is presently contesting any material Tax liability of contemplated by this Agreement) that would adversely affect the Company or any Company Subsidiary before any courtSellers, tribunal or agency.
(iii) All material Taxes that the Company an extension, a consent to extension or any waiver of the Company Subsidiaries is (or was) required by Applicable Law statute of limitation for any a Pre-Closing Tax Period relating to withhold or collect in connection with amounts paid or owing to any employeeTax, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied engaging in all material respects any voluntary disclosure or similar proceeding with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations a Governmental Authority with respect to Taxes nor agreed to any extension or Tax Returns of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets member of the Company Group for a Pre-Closing Tax Period, or any (v) the carryback of an item on the Tax Return of a member of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is Group for a party Post-Closing Tax Period to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authoritya Pre-Closing Tax Period, in each case that could have without the prior written consent of the Seller Representative, which consent shall not be unreasonably withheld, conditioned or delayed, unless such action by Purchaser or the applicable member of the Company Group would not result in any Tax Liability (or reduction to a materially adverse effect after Tax refund or credit benefit) to the Closing DateSellers or any Affiliate thereof.
(viiib) Neither Notwithstanding any provision in Section 10.4 to the contrary, if Purchaser or any of its Affiliates (including any member of the Company nor Group) receives written notice (including a written threat by any Governmental Authority) of any Tax Matter or other administrative, judicial, or other proceeding by, or against or with respect to Taxes (or relating to a Tax refund or credit benefit) of any member of the Company Group for any Pre-Closing Tax Period (collectively, a “Tax Contest”), Purchaser shall within ten calendar days after such receipt, provide written notice thereof to the Seller Representative if such Tax Contest could result in any Indemnified Taxes or a Tax refund or credit benefit. Purchaser shall have the right to control at its cost all actions relating to Taxes and to settle, compromise or litigate all Tax matters relating to a member of the Company Group, except if Sellers reasonably could be expected to have Liability for Indemnified Taxes or be entitled to a Tax refund or credit in lieu thereof, then (i) notwithstanding anything to the contrary under this Section 11.4(b), the Seller Representative shall have exclusive right to control all actions relating to such Tax Contest and such Taxes for Tax periods ending on or before the Closing Date (and Purchaser has the right to participate at its cost in such Tax Contest), and (ii) the Seller Representative shall have the right to participate at its cost in such Tax Contest that relates to a Straddle Period. No party shall settle or compromise any Tax Contest described in clause (i) or (ii) of the immediately prior sentence without the other party’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No claim in respect of Taxes that may subject Sellers to Liability for Indemnified Taxes (or entitle Sellers to a Tax refund or the benefit of a credit) shall be subject to any of the Company Subsidiaries is limitations set forth in Section 10.4 and in the event of a party to or is bound by any Tax sharingconflict, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)provisions of this Section 11.4(b) shall control.
(ixc) Neither To the Company nor any maximum extent possible under Tax Law and to the extent such items are directly or indirectly paid or deemed paid or accrued by Sellers or a member of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction Group on or prior to before the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made deductions with respect to any taxable period ending on the payment or prior to the Closing Date, or, to the Knowledge accrual of the Company, any intercompany transaction Transaction Expenses or excess loss account described in Section 1502 Indebtedness shall be deducted by the applicable members of the Code (or any corresponding provision of state, local or foreign Company Group in the applicable Pre-Closing Tax law)Period.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (PGT Innovations, Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes The Company has not been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating of Taxes by any Governmental Authority with respect to any taxable period for which the payment statute of material Taxes of limitations has not expired, and the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries not received any written notices from with respect to such taxable periods relating to any Taxing Authority that such an audit or examination is pending, or that issue which could affect the Company or any Tax liability of the Company Subsidiaries was required to file any Tax Return that was has not filedbeen resolved or paid in full.
(ii) Neither The Company has not been included as a member in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company nor Company) with respect to Taxes for any Company Subsidiary is presently contesting any material Tax liability taxable period for which the statute of the Company or any Company Subsidiary before any court, tribunal or agencylimitations has not expired.
(iii) All material Taxes that which the Company is or any of the Company Subsidiaries is (or was) has been required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, or any predecessor or Affiliate of any of them and each of any other party under which Cirrus or the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementscould be liable for any Taxes of any Person.
(v) Neither The Company has not been required to include in income any adjustment pursuant to Section 481 or any similar provision of the Code or any other corresponding applicable tax laws by reason of a voluntary change in accounting method initiated by the Company, and the Company nor has not received written notice that the Internal Revenue Service or any other taxing authority has initiated or proposed any such adjustment or change in accounting method.
(vi) The Company Subsidiary (A) has waived not entered into an agreement or waiver extending any statute of limitations with respect relating to the payment or collection of Taxes nor of the Company or agreed to any extension of time with respect to a Tax assessment or deficiency.
, or (viB) There are no liens for material Taxes (except Taxes as provided in Section 3.15(b) above, is not yet due and payable) on any presently contesting the Tax liability of the assets of the Company or any of the Company SubsidiariesCompany.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(eNo election under 341(f) of the Code of which has been made to treat the Merger is also Company as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A341(f) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(xviii) Neither The Company has not made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments, that will not be deductible under Section 280G of the Code.
(ix) The Company has not redeemed any Company Shares in a manner that would cause the transactions contemplated hereby to fail to qualify as a reorganization under Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code. The Company has not redeemed any Company Shares or made any distributions, and no Person related to the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Regulation Section 1.60111.368-4(b)(21(e)(3)(i)(B) or has acquired any other transaction requiring disclosure under analogous provisions Company Shares, in a manner that would cause the transactions contemplated hereby to violate the continuity of state, local or foreign Tax lawinterest requirement set forth in Treasury Regulation Section 1.368-1(e).
(xix) Neither the The Company nor any of the Company Subsidiaries will be required to include any material item of income inoperates at least one significant historic business line, or to exclude any material item owns at least a significant portion of deduction fromits historic business assets, taxable income in any taxable period (or portion thereof) ending after each case within the Closing Date as a result meaning of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law1.368-1(d).
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
Other Tax Matters. (i) No deficiency As of the Closing Date, the Company and each of its Subsidiaries will have withheld with respect to a material amount of its Employees and other third parties, all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes has been proposedrequired to be withheld, asserted and will have timely paid all such Taxes over to the appropriate authorities.
(ii) There is no Tax deficiency outstanding, assessed or assessed proposed against the Company or any of its Subsidiaries, nor has the Company or any of its Subsidiaries and remains unpaid, except executed any waiver of any statute of limitations on or extending the period for such deficiencies that are being contested, the assessment or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records collection of any Tax.
(iii) No audit or other examination of any Tax Return of the Company and or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in accordance with U.S. GAAP. Neither writing (nor has any member of the Company nor Officer Group been notified orally) of any Company Subsidiary is currently the subject of request for such an audit or other examination relating to examination.
(iv) Other than the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation338 Election Tax Liabilities, state or locality nor has neither the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Company Subsidiaries received any written notices from any Taxing Authority that such an audit Current Balance Sheet, whether asserted or examination is pendingunasserted, contingent or that otherwise, and, other than the Company or any of the Company Subsidiaries was required to file any 338 Election Tax Return that was not filed.
(ii) Neither Liabilities, neither the Company nor any Company Subsidiary is presently contesting of its Subsidiaries has incurred any material Tax liability for Taxes since the date of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) All material Taxes that Current Balance Sheet other than in the Company or any ordinary course of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsbusiness.
(v) Neither The Company has provided to Buyer or its legal counsel, copies of federal and state income Tax Returns for the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a year 2002 and 2001 and its payroll and local property Tax assessment or deficiencyReturns for the years 2002, 2003 and 2004.
(vi) There are (and immediately following the Effective Time there will be) no liens for material Taxes (except Taxes not yet due and payable) Liens on any of the assets of the Company or any of the Company Subsidiariesits Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(vii) None The Company has no Knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any of its Subsidiaries, other agreement with than any Taxing Authority, in each case that could have a materially adverse effect after Liens for Taxes not yet due and payable and other than the Closing Date338 Election Tax Liabilities.
(viii) Neither None of the Company nor Company's or any of its Subsidiaries' assets is treated as "tax-exempt use property," within the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among meaning of Section 168(h) of the Company and the Company Subsidiaries)Code.
(ix) Neither the Company nor any of its Subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its Subsidiaries.
(x) Except as set forth in Section 2.10(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common buyer of which was Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, (c) any liability for the Taxes of any person (other than Company or any of its subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(xi) The Company's and each of its Subsidiaries' tax basis in their respective assets for purposes of determining its future amortization, depreciation and other income Tax deductions is accurately reflected on the Company's and its Subsidiaries' tax books and records.
(xii) The information and data the Company has provided to Ernst & Young, LLP ("E&Y") and Buyer used by E&Y in connection with its preparation of the "Ownership Change Analysis" provided to Buyer and its advisors for the purpose of determining the extent to which use of any net operating losses, net operating loss carryovers, tax credits or credit carryovers, for federal and each applicable state income tax purposes, may be subject to limitation under Sections 382, 383 or 384 of the Code, is true and accurate; provided, that, the Company makes no representations regarding the stock valuation information provided to E&Y for use in the "Ownership Change Analysis."
(xiii) Neither the Company nor any of its Subsidiaries has been, within the past two years or otherwise as part of at any time, a “plan (or series of related transactions)” "United States Real Property Holding Corporation" within the meaning of Section 355(e) of the Code of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A897(c)(2) of the Code.
(xiv) Except as set forth on Section 2.10(c) of the Company Disclosure Schedule, no adjustment relating to any Tax Return filed by the Company or any of its Subsidiaries has been proposed formally or, to the Knowledge of the Company, informally by any tax authority to the Company or any of its Subsidiaries or any representative thereof.
(xv) Neither the Company nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
Code (x) Neither in the Company nor any two (2) years prior to the date of the Company Subsidiaries has participated this Agreement or (y) in a “listed transaction” distribution that could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Treasury Regulations Section 1.6011-4(b)(2355(e) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawthe Code) in conjunction with the Acquisition.
(xixvi) Neither No written claim has ever been made by any taxing authority to the Company nor or its Subsidiaries in a jurisdiction where Company or any of its Subsidiaries does not file Tax Returns that Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction, other than any such claim that has been resolved without the imposition of a material liability on Company or any of its Subsidiaries.
(xvii) The Company and each of its Subsidiaries have complied in all respects with the requirements of and conditions stipulated by any taxing authority with respect to any tax holiday or other tax relief granted to the Company or any of its Subsidiaries, and no taxing authority has threatened in writing or proposed in writing (or has threatened orally or proposed orally to the Company Officer Group) to revoke, eliminate, reduce or fail to renew such tax holiday or other tax relief.
(xviii) None of Company or any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to include take into account any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to adjustment under Section 108(i) 481 of the Code (or any corresponding similar provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or the corresponding tax laws of any corresponding provision of statenation, local state or foreign Tax law)locality.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted Schedule 2.11 attached hereto sets forth (A) ----------------- each taxable year or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records other taxable period of the Company and the Company its Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of for which an audit or other examination relating of Taxes by any taxing authority is currently in progress, (B) the taxable years or other taxable periods of the Company and its Subsidiaries which, for tax purposes, will not be subject to the payment normally applicable sate of material Taxes limitations because of waivers or agreements given by Parent, Seller, the company or its Subsidiaries and (C) a list of all written notices received by Parent, Seller, the Company or its Subsidiaries from any taxing authority pertaining to the commencement of a Tax audit or asserting a Tax liability of the Company or such Company Subsidiary by a Taxing Authority its Subsidiaries but, in the case of any nationclauses (A) and (C) above, state or locality nor has only to the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority extent that such an audit or examination is pending, or that if determined adversely to the Company or any of the Company its Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any could result in a material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) All material Taxes that the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiiii) Neither Except as provided on Schedule 2.11, neither the Company Company, nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return provided for under the Company Subsidiaries is a party laws of any jurisdiction with respect to or is bound by Taxes for any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among taxable period for which the Company and the Company Subsidiaries)statute of limitations has not expired.
(ixiii) Neither Except as disclosed on Schedule 2.11, there are no tax sharing, tax allocation or tax indemnity agreements in effect between the Company or any of its Subsidiaries and any other party under which Purchaser, the Company or any Subsidiary could be liable for any material Taxes or other claims of any party which could result in a material liability to the Company or any of its Subsidiaries after the Closing Date.
(iv) Except as provided in Schedule 2.11, since January 1, 1996 neither the company nor any of the Company its Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor made any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior payments pursuant to the Closing Date, any accounting method change or tax sharing agreement with any Taxing Authority, any prepaid amount received listed on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)such Schedule.
Appears in 1 contract
Other Tax Matters. Except as set forth in Schedule 3.8(c):
(i) No deficiency with respect to a material amount of Taxes has The Companies have not been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of a dispute or claim or an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Tax authorities of any nationGovernmental Body, state or locality nor has have the Company nor any of the Company Subsidiaries Companies received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedtaxing authority.
(ii) Neither Sellers and the Company nor Companies have not (A) entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any Company Subsidiary is presently contesting any material Tax liability statute of limitations relating to the payment or collection of Taxes of the Company Companies, or any Company Subsidiary (B) contested the Tax Liability of the Companies before any court, tribunal or agencyGovernmental Body.
(iii) The Companies have not been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under Applicable Law with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All material Taxes that which the Company or any of the Company Subsidiaries is Companies are (or washave been) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither There are no Tax sharing, allocation, indemnification or similar agreements in effect as between the Company nor Companies or any Company Subsidiary has waived predecessor thereof and any statute other party (including Sellers and any predecessors) under which Purchaser or the Companies would be liable for any Taxes or other claims of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyPerson.
(vi) There are no liens Within the past ten (10) years, the Companies have not (A) acquired assets from another corporation in a transaction in which Companies’ tax basis for material Taxes (except Taxes not yet due and payable) on any the acquired assets was determined, in whole or in part, by reference to the Tax basis of the acquired assets (or any other property) in the hands of the Company transferor or (B) acquired the stock of any of the Company Subsidiariescorporation that is or was a qualified subchapter S subsidiary.
(vii) None of There is no action, suit, taxing authority proceeding, audit or investigation now in progress, pending or, to Sellers’ Knowledge, Threatened against or with respect to the Company and the Company Subsidiaries is a party Companies with respect to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing DateTax.
(viii) Neither the Company nor The Companies do not reasonably expect any of the Company Subsidiaries is a party taxing authority to claim or is bound by assess any additional Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor against them for any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, orand to Sellers’ Knowledge, there is no basis for any such claim or assessment.
(ix) The Companies have not distributed stock of another Person, nor had its stock distributed by another Person, in a transaction that purported or was intended to be governed in whole or in part by IRC Section 355 or Section 361.
(x) The Companies have not been a member of an affiliated or similar group filing a consolidated, combined, unitary or similar income tax return or has any liability for the Knowledge Taxes of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code Person under Treas. Reg. §1.1502-6 (or any corresponding similar provision of state, local or foreign Tax law), as a transferee or successor, by agreement, or otherwise.
Appears in 1 contract
Other Tax Matters. (iExcept as set forth in Section 3.01(n) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has Company's disclosure letter attached hereto:
(1) neither the Company nor any of its Subsidiaries has made any payments, nor is or may become obligated (under any contract or agreement entered into on or before the Initial Closing Date) to make any payments, that will be non-deductible under Section 162(m) or 280G of the Code (or any analogous provisions of state, local or foreign Tax law);
(2) the Company and each of its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was has withheld and paid all Taxes required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party other than such Taxes which in the aggregate, are not material, and all material Forms W-2 and 1099 required with respect thereto have been duly withheld or collected, properly completed and have been paid over to the proper authorities to the extent due and payable.timely filed;
(iv3) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There there are no liens for material Taxes (except other than current Taxes not yet due and payable) on any of upon the assets or properties of the Company or any of the Company its Subsidiaries.;
(vii4) None of the Company and its Subsidiaries are entitled to each Tax refund claimed or received by the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction Subsidiary on or prior to the Initial Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior except to the Closing Date, extent the disallowance of which would not result in any election pursuant to Section 108(imaterial Tax liability or loss of a pending material Tax refund claim;
(5) the Company and its Subsidiaries are not and will not become liable for any material Taxes as a result of the Code consummation of the transactions contemplated herein and such transactions will not create any material gains or income, the taxation of which is deferred under Treasury Regulation Sections 1.1502-13 (or any corresponding similar provision of state, local or foreign law);
(6) neither the Company nor any of its Subsidiaries is a party to any Tax law) made allocation, sharing, or similar agreement under which the Company or such Subsidiaries has any current or potential contractual obligation to indemnify any other Person with respect to Taxes;
(7) the Company and each of its Subsidiaries has properly accrued on its respective financial statements all material Tax liabilities (determined in accordance with GAAP) and the amount so accrued is at least equal to its respective liability for such Taxes; and
(8) neither the Company nor any taxable period ending on or prior to the Closing Date, or, to the Knowledge of its Subsidiaries has any liability for material Taxes arising as a result of the Company, Company or any intercompany transaction or excess loss account described of its Subsidiaries at any time being a member of an affiliated group (as defined in Section 1502 section 1504(a) of the Code (and any analogous combined, consolidated or any corresponding provision of unitary group defined under state, local or foreign income Tax law)) other than a group the common parent of which is the Company or any of its Subsidiaries.
Appears in 1 contract
Samples: Stock Subscription Agreement (Genad Connector Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any Except as set forth on Schedule 4.12(c)(i) of the Company Subsidiaries and remains unpaidDisclosure Letter, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company each of its Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently have not been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality locality, nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of its Subsidiaries received any notices from any tax authority relating to any issue which could materially affect the Tax liability of the Company or any of its Subsidiaries. To the best knowledge of the Company, no state of facts exists or has existed that would constitute grounds for the assessment of any material Taxes with respect to any taxable year or period. No tax liens exist upon any property or assets of the Company or any of its Subsidiaries was required to file any Tax Return that was except liens for current Taxes not filedyet due.
(ii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company Subsidiary is presently contesting and any material Tax liability Subsidiaries of the Company Company) provided for under the laws of the United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, collected and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each Except as set forth on Schedule 4.12(c)(iv) of the Company Disclosure Letter, there are no Tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or affiliate of any of them, and any other party under which Parent, Sub or the Company (or any of its Subsidiaries) could be liable for any Taxes or other claims of any party other than the Company or any Subsidiary of the Company. No power of attorney has been granted with respect to any matter relating to Taxes for the Company or any of its Subsidiaries for any period for which the statute of limitations (including any waivers or extensions) has complied in all material respects with all information reporting (and related withholding) and record retention requirementsnot yet expired.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets No indebtedness of the Company or any of its Subsidiaries consists of "corporate acquisition indebtedness" within the Company Subsidiariesmeaning of Section 279 of the Code.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiivi) Neither the Company nor any of its Subsidiaries has been required to include in income any adjustment pursuant to Section 481 or any similar provision of the Code or the corresponding tax laws of any nation, state or locality by reason of a voluntary change in accounting method initiated by the Company or any of its Subsidiaries, and the Internal Revenue Service or other taxing authority has not initiated or proposed any such adjustment or change in accounting method.
(vii) Except as set forth on Schedule 4.12(c)(vii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax sharinghas, allocation or indemnification agreement or arrangement as of the Closing Date: (other than such A) entered into an agreement or arrangement exclusively between waiver extending any statute of limitations relating to the payment or among collection of Taxes of the Company or any of its Subsidiaries or (B) is presently contesting the Tax liability of the Company or any of its Subsidiaries before any court, tribunal or agency.
(viii) The Company is not a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code and the Company Subsidiaries)rules and regulations promulgated thereunder.
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(eNo election under 341(f) of the Code of which has been made or shall be made prior to the Merger is also Closing Date to treat the Company as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.
(x) Except as set forth on Schedule 4.12(c)(x) of the Company Disclosure letter, neither the Company nor any of its Subsidiaries is a party to any agreement or plan that would require it to make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and 4999 of the Code. Neither the Company nor any of the Company its Subsidiaries has participated entered into any compensatory agreements with respect to the performance of services for which payment thereunder would result in a “listed transaction” within nondeductible expense pursuant to Section 162(m) of the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawCode.
(xi) Neither There are no outstanding balances of deferred gain or loss accounts related to any deferred intercompany transactions to which the Company nor or any of the Company its Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as was a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)party.
Appears in 1 contract
Samples: Merger Agreement (New England Business Service Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any As of the Company Subsidiaries and remains unpaiddate of this Agreement, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an any material audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality and, to the knowledge of the Company or any of its Subsidiaries, no such audit or other examination is contemplated or pending, nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could materially affect the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.of its Subsidiaries;
(iiii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return (other than Returns which include only the Company or any Subsidiaries of the Company) provided for under the laws of any jurisdiction with respect to Taxes, for any taxable period for which the statute of limitations has not expired;
(ii) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholdershareholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.;
(iii) There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Company, any Subsidiary, or any predecessor or Affiliate of any of them and any other party under which Parent, Sub, the Company or any of its Subsidiaries could be liable for any Taxes or other claims of any such party;
(iv) The Company and each No indebtedness of the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Code or bears interest that is otherwise nondeductible pursuant to Section 163 of the Code;
(v) Neither the Company nor any Company Subsidiary of its Subsidiaries has waived any statute of limitations with respect to Taxes nor applied for, been granted, or agreed to any extension accounting method change for which it shall be required to take into account any adjustment pursuant to Section 481 of time with respect to a Tax assessment the Code or deficiency.any similar provision of the Code or the corresponding tax laws of any nation, state or locality;
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of its Subsidiaries, as of the Company Subsidiaries is a party to or is bound by any Tax sharingClosing Date, allocation or indemnification agreement or arrangement (other than such w) has entered into an agreement or arrangement exclusively between waiver or among been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company and or any of its Subsidiaries, (x) as of the date of this Agreement, is presently contesting the Tax liability of the Company or any of its Subsidiaries before any Governmental Entity, (y) has granted a power-of-attorney related to Tax matters to any Person, or (z) has applied for and/or received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company or any of its Subsidiaries).;
(ixvii) Neither the Company nor any of the Company its Subsidiaries has been, within the past two years or otherwise as part of is a “plan (or series of related transactions)” "United States real property holding corporation" within the meaning of Section 355(e897(c)(2) of the Code;
(viii) No election under 341(f) of the Code has been made or shall be made prior to the earliest of which the Merger is also Acceptance Date, Compulsory Completion Date, Scheme Effective Date and the termination of this Agreement pursuant to Section 8.1 to treat the Company or any of its Subsidiaries as a partconsenting corporation, a “distributing corporation” or a “controlled corporation” (within the meaning of as defined in Section 355(a)(1)(A) 341 of the Code;
(ix) As of the date of this Agreement, no claim has ever been made by any taxing authority in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x) Neither jurisdiction where the Company nor or any of the Company its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).does
Appears in 1 contract
Other Tax Matters. Without limitation to the provisions of subsection (i29) above:
(A) The Company and each of its subsidiaries have filed, or caused to be filed, on a timely basis all Tax Returns required to be filed by them (all of which returns were correct and complete in all material respects). No deficiency such Tax Returns have been amended. The Company and each of its subsidiaries have paid or withheld, or caused to be paid or withheld, all Taxes that are due and payable, or the Company has provided adequate accruals in accordance with respect to a GAAP in its financial statements for any Taxes that have not been paid, whether or not shown as being due on any returns. No material amount of Taxes Tax liability has been proposedassessed, asserted proposed to be assessed, incurred or assessed against accrued other than in the ordinary course of business.
(B) Except for any Taxes for which the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, has provided adequate accruals in each case, accordance with GAAP in good faith, and, in each case, for which adequate reserves have been established on the books and records of its financial statements the Company and the Company Subsidiaries its subsidiaries have withheld from all payments made by them, or otherwise collected, and have remitted all amounts in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject respect of an audit Taxes required to be withheld, collected or other examination relating remitted by them to the payment of material Taxes of applicable governmental authority within the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedtime periods.
(iiC) Neither the Company nor any Company Subsidiary is presently contesting of its subsidiaries has any material Tax liability for the Taxes of the Company any other person, corporation, partnership, trust or any Company Subsidiary before any court, tribunal or agencyother taxpayer.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(viD) There are no liens for material Taxes audits or investigations in progress, pending or threatened by the Canada Revenue Agency, the Internal Revenue Service or any other taxing authority, including, without limitation, any sales tax authority (except Taxes not yet due and payable) on a “Taxing Authority”), against the Company, any of its subsidiaries or any of the assets of the Company or any of its subsidiaries, and neither the Company Subsidiariesnor any of its subsidiaries has received any notification that any material issues have been raised (and are currently pending) by any Taxing Authority in connection with any of the Tax Returns referred to above, and no waivers of statutes of limitations have been given or requested with respect to the Company or any of its subsidiaries.
(viiE) None Except for any Taxes for which the Company has provided adequate accruals in accordance with GAAP in its financial statements, there are no material proposed (but unassessed) additional Taxes, none have been asserted and no Tax liens have been filed other than for Taxes not yet due and payable.
(F) The income tax liabilities of the Company and its subsidiaries have been assessed for all taxation years up to and including the Company Subsidiaries is a party to or bound by any closing agreementtaxation year ended December 31, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date2004.
(viiiG) There are no circumstances which exist and would result in, or which have existed and resulted in, Sections 80 to 80.04 of the ITA applying to the Company or any of its subsidiaries.
(H) Neither the Company nor any of the Company Subsidiaries is a party its subsidiaries have either directly or indirectly transferred property to or is bound by any Tax sharingsupplied services to or acquired property or services from a person, allocation corporation, partnership, trust or indemnification agreement or arrangement other taxpayer with whom it was not dealing at arm’s length (for the purposes of the ITA) for consideration other than such an agreement consideration equal to the fair market value of the property or arrangement exclusively between services at the time of the transfer, supply or among acquisition of the Company and the Company Subsidiaries)property or services.
(ixI) Neither the Company nor any corporation to which the Company is related (for the purposes of the Company Subsidiaries has been, within ITA) is a corporation whose principal business is (i) the past two years or otherwise as part lending of a “plan money to persons with whom such corporation is dealing at arm’s length (or series of related transactions)” within for the meaning of Section 355(e) purposes of the Code ITA); (ii) the purchasing of which the Merger is also debt obligations issued to such persons; or (iii) a part, 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 tax-free treatment under Section 355 of the Codecombination thereof.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Underwriting Agreement (NUCRYST Pharmaceuticals Corp.)
Other Tax Matters. (i) No deficiency with respect to a material amount Schedule 2.11 attached hereto sets forth (A) each taxable year or other taxable period of the Transaction Parties for which an audit or other examination of Taxes has been proposedby the appropriate tax authorities of any nation, asserted state or assessed against the Company locality is currently in progress (or any scheduled as of the Company Subsidiaries Closing Date to be conducted) together with the names of the respective tax authorities conducting (or scheduled to conduct) such audit or examination and remains unpaida description of the subject matter of such audits or examinations, except for such deficiencies that are being contested, (B) the most recent taxable year or that will be contested, in each case, in good faith, and, in each case, other taxable period for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to Federal income taxes of any Transaction Party have been finally completed and the payment disposition of material Taxes such audits or examinations, (C) the taxable years or other taxable periods of any Transaction Party which will not be subject to the normally applicable statute of limitations by reason of any waiver or extension of the Company applicable statute of limitations for Taxes entered into or granted by or on behalf of such Company Subsidiary by a Taxing Authority Transaction Party, (D) the amount of any nationmaterial proposed adjustments (and the principal reason therefor) relating to any Returns for Tax liability of any Transaction Party which have been proposed (and that are outstanding) or assessed by any taxing authority and (E) a list of all material notices received by any Transaction Party from any taxing authority relating to any issue which could affect the Tax liability of any Transaction Party, state or locality nor which issue has not been finally determined and which, if determined adversely to such Transaction Party, could result in a material Tax liability. Neither the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that Transaction Parties (A) are presently contesting the Company or Tax liability of any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary Transaction Parties before any court, tribunal or agencyagency or (B) has applied for and/or received a ruling or determination from a tax authority regarding a past or prospective transaction of any of the Transaction Parties.
(ii) No Transaction Party has been included in any "consolidated," "unitary" or "combined" Return provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iii) All material Taxes that the Company or which any of the Company Subsidiaries is Transaction Party are (or waswere) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is Transaction Parties are a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” "United States real property holding corporation" within the meaning of Section 355(e897(c)(2) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(xv) Neither There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between any Transaction Party and any other party under which the Company nor Purchaser, or any of its Affiliates, or any Transaction Party could be liable for any Taxes or other claims of any party.
(vi) The Transaction Parties have not applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Company Subsidiaries has participated in a “listed transaction” Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(vii) No indebtedness of any Transaction Party consists of "corporate acquisition indebtedness" within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions 279 of state, local or foreign Tax lawthe Code.
(xiviii) Neither the Company nor The Transaction Parties are not a party to any agreement that would require them to make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and 4999 of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)Code.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Physician Partners Inc)
Other Tax Matters. Except as set forth in Section 3.18 of the ----------------- Company Disclosure Letter:
(i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an audit or other examination relating to of Taxes for any taxable period after December 31, 1994 by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could reasonably be expected to affect materially the Tax liability of the Company or any of its Subsidiaries after the Company Subsidiaries was required to file any Tax Return that was not fileddate thereof.
(ii) Neither the Company nor any of its Subsidiaries, as of the Effective Time, (A) has entered into an outstanding agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of material Taxes of the Company Subsidiary or any of its Subsidiaries, (B) is presently contesting any material the Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency.
agency or (iiiC) All material Taxes that the Company has applied for and/or received a ruling or any of the Company Subsidiaries is (determination from a taxing authority regarding a past or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets prospective transaction of the Company or any of its Subsidiaries which could affect the Tax liability of the Company Subsidiariesor any of its Subsidiaries after the date hereof.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viiiiii) Neither the Company nor any of its Subsidiaries has been included in any "consolidated," "unitary" or "combined" Return of any other Person provided for under the Company Subsidiaries is a party law of the United States, any foreign jurisdiction or any state or locality with respect to or is bound by material Taxes for any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among taxable period for which the Company and the Company Subsidiaries)statute of limitations has not expired.
(ixiv) No claim has ever been made by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file material Returns that the Company or any of its subsidiaries is or may be subject to taxation by that jurisdiction;
(v) There are no tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any predecessor or affiliate thereof and any other Person under which the Company or any of its Subsidiaries could be liable for any material Taxes of any other Person.
(vi) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account after the date hereof any material adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(vii) No election under Section 341(f) of the Code has been made or shall be made prior to the Effective Time to treat the Company or any of its subsidiaries as a consenting corporation, as defined in Section 341 of the Code.
(viii) No material amount of indebtedness of the Company or any of its Subsidiaries has been, within the past two years or otherwise as part consists of a “plan (or series of related transactions)” "corporate acquisition indebtedness" within the meaning of Section 355(e) 279 of the Code of which the Merger Code.
(ix) The Company is also not a part, a “distributing "United States real property holding corporation” or a “controlled corporation” (" within the meaning of Section 355(a)(1)(A897(c)(2) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(x) Neither The Company has delivered to Acquiror correct and complete copies of all United States federal, state and all foreign income Tax Returns (to the extent filed as of the date hereof or, if not filed, correct and complete copies of extensions thereof), examination reports, statements of deficiencies assessed against or agreed to by the Company nor and any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) its Subsidiaries, or any other transaction requiring disclosure under analogous provisions of statesimilar correspondence from a taxing authority, local or foreign Tax lawrelating to taxable years 1997, 1998 and 1999.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Merger Agreement (Pine Holdings Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has Except as set forth on Schedule 3.9(c)(i), the Companies have not been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of a dispute or claim or an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Tax authorities of any nationGovernmental Body, state or locality nor has have the Company nor any of the Company Subsidiaries Companies received any written notices from any such Taxing Authority that such an audit or examination is pending, or that authority relating to any issue which could affect the Company or any Tax Liability of the Company Subsidiaries was required Companies. Schedule 3.9(c)(i) also includes a list of all Tax examination reports and statements of deficiencies assessed against or agreed to file by the Companies since January 1, 1996, each of which has been provided to the Purchaser. Except as set forth in Schedule 3.9(c)(i), there are no matters under discussion with any Tax Return Governmental Body with respect to Taxes that was not filedare likely to result in any additional Liability for Taxes.
(ii) Neither Except as set forth on Schedule 3.9(c)(ii), neither the Company Shareholders nor any Company Subsidiary is predecessor shareholder of the Companies or the Companies have, as of the Closing Date, (A) entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Companies, or (B) are presently contesting any material the Tax liability Liability of the Company or any Company Subsidiary Companies before any court, tribunal or agency.
(iii) The Companies have not been included in any "consolidated," "unitary" or "combined" Tax Return provided for under Applicable Law with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All material Taxes that which the Company or any of the Company Subsidiaries is Companies are (or waswere) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each Companies are not "United States real property holding corporations" within the meaning of Section 897(c)(2) of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyCode.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of Tax sharing, allocation, indemnification or similar agreements in effect as between the assets of the Company Companies, or any predecessor or Affiliate thereof, and any other Party (including the Shareholders and any predecessors or Affiliates thereof) under which the Purchaser or the Companies could be liable for any Taxes or other claims of the Company Subsidiariesany Person.
(vii) None The Companies have not applied for, been granted, or agreed to any accounting method change for which they will be required to take into account any adjustment under Section 481 of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, Code or any other agreement with similar provision of the Code or the corresponding Tax laws of any Taxing Authoritynation, in each case that could have a materially adverse effect after the Closing Datestate or locality.
(viii) Neither the Company nor any No election under Section 341(f) of the Company Subsidiaries is a party Code has been made or shall be made prior to or is bound by any Tax sharingthe Closing Date to treat the Companies as consenting corporations, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among as defined in Section 341 of the Company and the Company Subsidiaries)Code.
(ix) Neither the Company nor The Companies are not Parties to any agreement that would require them to make any payment that would constitute an "excess parachute payment" for purposes of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 Sections 280G and 4999 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” The Companies have been validly electing S corporations within the meaning of Treasury Regulations Section 1.6011-4(b)(2Sections 1361 and 1362 of the Code at all times since their inception. Such elections were made on (i) or July 16, 1990 with respect to MGR, (ii) September 1, 1993 with respect to DSI, and (iii) October 5, 1998 with respect to Contract Air. Except as set forth on Schedule 3.9(c)(x), the Companies have also made all such elections required under any other transaction requiring disclosure under analogous provisions of state, state or local or foreign Tax law. The Companies will continue to be valid S corporations through the day immediately preceding the Closing Date and will satisfy the requirements for an election under Treasury Regulation ss.1.338(h)(10)-1(d) with respect to the purchase of the Stock.
(xi) Neither the Company nor any Except as set forth on Schedule 3.9(c)(xi), none of the Company Subsidiaries will be required to include any material item Companies is or has been a "qualified subchapter S subsidiary" ("QSST") within the meaning of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i1361(b)(3)(B) of the Code Code.
(or xii) There are no requests for rulings in respect of any corresponding provision of stateTaxes pending between the Companies and any Governmental Body, local or foreign including any Tax lawauthority.
(xiii) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge None of the Company, Companies will be liable for any intercompany transaction or excess loss account described in Tax under Section 1502 1374 of the Code in connection with the deemed sale of any Company assets (or including assets of any corresponding provision of state, local or foreign Tax lawQSST) caused by the 338(h).
Appears in 1 contract
Other Tax Matters. (a) Any and all payments by the Company with respect to any Class B Ordinary Shares and Ordinary Shares currently or hereafter held by the Investors, including any dividend or other distribution with respect thereto, shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed under applicable Law (including without limitation any law, rule, code or regulation of the People’s Republic of China or any other non-U.S. Governmental Authority) excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on any Investor as a result of a present or former connection between such Investor and the jurisdiction of the governmental authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from such Investor’s having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement) (any such non-excluded taxes, levies, imposts, deductions, charges, withholdings or liabilities collectively referred to as “International Taxes”). If the Company shall be required to deduct any International Taxes from or in respect of any such payment, (i) No deficiency the sum payable shall be increased by the amount by which the sum payable would otherwise have to be increased (the “Gross-up Amount”) to ensure that after making all required deductions (including deductions applicable to the Gross-up Amount) the payee would receive an amount equal to the sum it would have received had no such deductions been made, (ii) the Company shall make such deductions and (iii) the Company shall pay the full amount withheld or deducted to the applicable Governmental Authority within the time period required under applicable Law; provided, however, that the Company shall not be required to pay any Gross-up Amount with respect to a material amount any International Taxes (A) that are attributable to an Investor’s failure to comply with the requirements of Taxes has been proposed, asserted paragraph (d) of this Section or assessed against (B) that are imposed on amounts payable to the Company or any Investor at the time of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedClosing.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(ivb) The Company and Listco will use their best efforts to ensure that they will not be deemed as a resident enterprise for PRC Tax purposes or otherwise subject to income Tax in the PRC.
(c) The Parties (other than the Investors) agree to jointly and severally indemnify each Investor from and against (i) any Taxes imposed on such Investor by any PRC Government Authority in connection with its investment in the Company, and (ii) any loss, claim, liability, expense, or other damage (including diminution in the value of the Company Subsidiaries has complied business or such Investor’s investment in all material respects the Company) attributable to (x) any failure to comply with all information reporting any of the covenants of any Group Company under the Transaction Documents, and (and related withholdingy) and record retention requirementsany misrepresentation or breach of warranty made in this Agreement. For the avoidance of doubt, investment shall include the Notes.
(vd) Neither An Investor that is entitled to an exemption from or reduction in the rate of any withholding tax under the law of the jurisdiction in which the Company nor is located, or any Company Subsidiary has waived any statute of limitations treaty to which such jurisdiction is a party, with respect to Taxes nor agreed payments in connection with the Ordinary Shares or Class B Ordinary Shares shall deliver to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction at the time or excess loss account described times prescribed by applicable law or reasonably requested by the Company, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding, provided that such Investor is legally entitled to complete, execute and deliver such documentation and in Section 1502 such Investor’s reasonable judgment such completion, execution or submission would not materially prejudice the legal position of the Code (or any corresponding provision of state, local or foreign Tax law)such Investor.
Appears in 1 contract
Samples: Investors Rights Agreement (China Techfaith Wireless Communication Technology LTD)
Other Tax Matters. Except as set forth on Schedule 4.13(c):
(i) No deficiency with respect to a material amount (A) none of Taxes the FAST Companies and their respective Subsidiaries has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has locality; (B) no such audit is pending or, to the Company nor any knowledge of the FAST Companies, contemplated; and (C) no FAST Company Subsidiaries or any Subsidiary thereof has received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could affect the Tax liability of any FAST Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.such Subsidiary;
(ii) Neither none of the FAST Companies and their respective Subsidiaries (A) has, as of the Closing Date, entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of any FAST Company nor any Company Subsidiary is presently and (B) is, as of the Closing Date, currently contesting any material the Tax liability of the any FAST Company or any Company Subsidiary thereof before any court, tribunal or agency.;
(iii) All material none of the FAST Companies and their respective Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Return, other than the consolidated, unified or combined Returns of FACO or such Return filed with any direct or indirect Subsidiary of FACO, provided for under the laws of the United States, any foreign jurisdiction or any state or locality with respect to Taxes that for any taxable period for which the statute of limitations has not expired;
(iv) all Taxes which any FAST Company or any of the Company Subsidiaries Subsidiary thereof is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.;
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any none of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company FAST Companies and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company their respective Subsidiaries has been, within the past two years or otherwise as part of been a “plan (or series of related transactions)United States real property holding corporation” within the meaning of Section 355(e897(c)(2) of the Code at any time during the five-year period ending on the date hereof;
(vi) there are no tax sharing, allocation, indemnification or similar agreements in effect as between (A) any FAST Company or any predecessor, Subsidiary or other affiliate thereof and (B) any other party under which Parent, the Company or any Subsidiary thereof (before and after giving effect to the Mergers) could be liable for any Taxes or other claims of any party;
(vii) none of the FAST Companies and their respective Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Merger is also a partCode or any similar provision of the Code or the corresponding tax laws of any nation, a “distributing corporation” state or a “controlled corporation” locality;
(within the meaning of viii) no election under Section 355(a)(1)(A341(f) of the Code) Code has been made or shall be made prior to the Closing Date to treat any FAST Company or any Subsidiary thereof as a consenting corporation, as defined in a distribution of stock intended to qualify for tax-free treatment under Section 355 341 of the Code.;
(ix) no claim has ever been made by any taxing authority in a jurisdiction where any FAST Company or any Subsidiary thereof does not file Returns that such FAST Company or any of its Subsidiaries are or may be subject to taxation by that jurisdiction;
(x) Neither the no FAST Company nor or any Subsidiary thereof is a party to any agreement that would require any FAST Company or any Subsidiary thereof to make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the Code; Table of Contents (xi) (A) there are no deferred intercompany transactions between any FAST Company and a Subsidiary thereof or between the respective Subsidiaries has participated in a “listed transaction” of the FAST Companies and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made 19 with respect to the stock of any taxable period ending on FAST Company or prior any Subsidiary thereof) which will or may result in the recognition of income upon the consummation of the transaction contemplated by this Agreement, and (B) there are no other transactions or facts existing with respect to the Closing Date, or, to the Knowledge FAST Companies and/or their Subsidiaries which by reason of the Company, any intercompany transaction or excess loss account described in Section 1502 consummation of the Code (or any corresponding provision of state, local or foreign Tax law).transaction contemplated by this Agreement will result in the FAST Companies and/or their Subsidiaries recognizing income; and
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the The Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is not currently the subject of an audit or other examination (nor has it been the subject of an audit or examination) relating to Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority taxing authorities of any nation, state or locality (and no such audit is pending or, to the Knowledge of the Company, contemplated) nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pendingtaxing authority relating to any issue which could reasonably be expected to affect the Tax liability of the Company, or including (A) any claim in a jurisdiction where the Company does not file Returns that the Company is or may be subject to taxation by that jurisdiction or (B) any written assertion of a deficiency, claim or issue with respect to Taxes or any of adjustment to Taxes against the Company Subsidiaries was required with respect to file any Tax Return that was not filedtaxable period for which the period of assessment or collection remains open.
(ii) Neither The Company (A)(1) has not entered into a written agreement or waiver extending any statute of limitations relating to the assessment, payment or collection of Taxes of the Company nor any Company Subsidiary that has not expired or (2) is not presently contesting any material the Tax liability of the Company or any Company Subsidiary before any courttaxing authority or other Governmental Entity, tribunal and (B) no written power of attorney with respect to any such Taxes has been filed, requested or agencyentered into with any Governmental Entity for any period for which the statute of limitations (including any waivers or extensions) has not yet expired (other than any power of attorney granted to a payroll provider in the ordinary course of business).
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting applicable Laws relating to the withholding and collection of Taxes and has within the time and manner prescribed by applicable Laws (A) withheld all Taxes which the Company is obligated to withhold from amounts owing to any employee, officers, directors, creditor or any other Persons, (B) collected all sales, use, value added, goods and related withholdingservices, and similar Taxes required to be collected and (C) timely remitted all Taxes withheld and record retention requirementscollected to the appropriate Governmental Entity in accordance with applicable Laws in all respects.
(viv) Neither the The Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes is not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)United States real property holding corporation” within the meaning of Section 355(e897(c)(2) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(xv) Neither There are no Tax sharing, allocation, indemnification or similar Contracts (other than Contracts entered into in the ordinary course of business, the primary purpose of which is not Tax) in effect as between the Company nor or Affiliate thereof and any other party (including Shareholders and any of their respective predecessors or Affiliates) under which Parent or the Company Subsidiaries has participated could be liable for any Taxes or other claims of any party, including claims arising from (A) any agreement set forth in a “listed transaction” within contract regarding the meaning acquisition of Treasury Regulations Section 1.6011-4(b)(2) any business, properties or rights in effect as between the Company or Affiliate thereof and any other Person under which the Company may be required to make payments with respect to Tax benefits, including but not limited to transaction requiring disclosure under analogous provisions of statetax benefits arising from a prior transaction, local or foreign Tax law(B) any agreement with a Governmental Entity.
(xivi) Neither the The Company nor any has delivered or made available to Parent true and complete copies, including all amendments thereto, of each of the Returns for Income Taxes filed on behalf of the Company.
(vii) The Company Subsidiaries will not be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in for any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale of the following that occurred or open transaction exists on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior Date (in each case where there is a reference to the Closing DateCode or Treasury Regulations, any election pursuant to Section 108(i) of the Code (or including any corresponding or similar provision of state, local or foreign non-U.S. Income Tax lawLaw): (A) made a “closing agreement” as described in Section 7121 of the Code; (B) an installment sale or open transaction; (C) a prepaid amount received or deferred revenue recognized; (D) an intercompany item under Treasury Regulation Section 1.1502-13 or an excess loss account under Treasury Regulation Section 1.1502-19; (E) a change in accounting method pursuant to Section 481 of the Code or any similar provision of the Code; or (F) any inclusion under Section 951(a) or Section 951A of the Code attributable to (1) “subpart F income,” within the meaning of Section 952 of the Code, (2) direct or indirect holding of “United States property,” within the meaning of Section 956 of the Code, (3) “global intangible low-taxed income,” as defined in Section 951A of the Code, in each case, determined as if the relevant taxable years ended on the Closing Date or (4) any inclusion under Section 965 of the Code, determined without regard to any election pursuant to Section 965(h) of the Code.
(viii) The Company is not and has not been a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
(ix) The Company has not engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).
(x) There are no Liens for Taxes on the Company or any assets of the Company other than Permitted Liens.
(xi) The Company has not been included in any “consolidated,” “unitary,” or “combined” Return provided for under the Law of the United States, any non-U.S. jurisdiction or any state, province, prefect or locality with respect to Taxes for any taxable period ending for which the statute of limitations has not expired.
(xii) The Company does not have any liability for Taxes under Treasury Regulations Section 1.1502-6 (or any similar provision of any state, local or foreign Law) as a result of having been a member of any affiliated group within the meaning of Section 1504(a) of the Code, or any similar affiliated or consolidated group for Tax purposes under any state, local or foreign Law, or have any liability for the Taxes of any Person (other than the Company), or as a transferee or successor, by Contract or otherwise (other than Contracts entered into in the ordinary course of business, the primary purpose of which is not Tax).
(xiii) The Company has not since its incorporation been resident for Tax purposes in a country other than its jurisdiction of incorporation. The Company does not have a permanent establishment, fixed base, or fixed place of business (in each case, within the meaning of an applicable Tax treaty or the Laws of any applicable jurisdiction) in any country outside of its country of formation.
(xiv) None of the “section 197 intangibles” (within the meaning of Section 197 of the Code) of the Company is subject to any limitation on amortization under Treasury Regulations Section 1.197-2(h).
(xv) The Company has not elected, through action or prior to the Closing Date, orinaction, to benefit from any payroll tax relief, including tax credits and tax deferrals, under the Knowledge Families First Coronavirus Response Act or the CARES Act (including pursuant to Sections 2301 and 2302 of the Company, CARES Act) or any intercompany transaction similar legislation with respect to payroll tax relief that addresses the financial impact of COVID-19 on employers.
(xvi) Any and all material transactions between or excess loss among the Company and any of its Affiliates have occurred on arm’s-length terms and the Company has complied in all material respects with all Tax-related requirements that the arm’s-length nature of the terms of such transactions be documented. Such transactions have been properly taken into account described and reported in Section 1502 the Returns of the Company and the Company has maintained documentation (including any applicable transfer pricing studies) in connection with any such related party transactions in material compliance with Sections 482 and 6662 of the Code (or and the Treasury Regulations promulgated thereunder and any corresponding provision comparable provisions of state, local or foreign applicable Law.
(xvii) None of the Company’s assets are subject to any agreement treated as a Tax law)partnership agreement or is otherwise treated as held in an arrangement requiring a partnership income Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code.
(xviii) For purposes of this Section 3.12, any reference to the Company shall be deemed to include any predecessor or Person that merged with or was liquidated or converted into the Company. Notwithstanding anything to the contrary in this Agreement, the Company does not make any representation or warranty as to the amount, limitation on, existence or availability in any taxable period (or portion thereof) beginning after the Closing Date of any net operating loss carryforward, capital loss carryforward, disallowed business interest expense carryforward, Tax basis or Tax credit carryforward.
Appears in 1 contract
Other Tax Matters. With respect to the Pre-Closing Period:
(i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an investigation, audit or other examination or proceeding relating to the payment of material Taxes of or with respect to the Company or such any Company Subsidiary by a the Taxing Authority Authorities of any nation, state state, province or locality nor has the Company nor or any of Company Subsidiary received in the Company Subsidiaries received past six (6) years any written notices from any Taxing Authority that such an investigation, audit or other examination or proceeding is pending, or . No claim has ever been made by a Governmental Entity (that remains unresolved) in a jurisdiction where the Company and the Company Subsidiaries do not file Tax Returns that the Company or any of the Company Subsidiaries was Subsidiary is or may be subject to Tax or required to file any Tax Return Returns in that was not filedjurisdiction.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability Taxes of the Company or any Company Subsidiary before any court, tribunal or agency. None of the Company, the Company Subsidiaries or any member of the Pre-Closing Shareholder Group has a request pending with any Taxing Authority relating to Taxes of the Company or the Company Subsidiaries (A) for a private letter ruling, (B) for administrative relief, (C) for technical advice, or (D) for a change of any method of accounting.
(iii) Neither the Company nor any Company Subsidiary has executed or agreed to any waiver of any statute of limitations in respect of Taxes or any Tax Return, and neither the Company nor any Company Subsidiary has consented to extend the time, or is the beneficiary of any extension of time, in which (i) any material Tax may be assessed or collected by any Taxing Authority (other than any extension which is no longer in effect) or (ii) to file any material Tax Return (outside the ordinary course of business, in accordance with past custom and practice).
(iv) Neither the Company nor any Company Subsidiary is or has ever participated or engaged in or been a party to any “listed transaction” as defined in Treasury Regulation Section 1.6011-4(b).
(v) Neither the Company nor any Company Subsidiary has any liability for the Taxes of any Person (other than any of the Company and the Company Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of U.S. federal, state, local or non-U.S. Law), as a transferee or successor, by Contract or otherwise by provision of Law.
(vi) The Company and the Company Subsidiaries will not be required to report for Tax purposes in a period ending after the Closing Date any material amount of income or gain as a result of any (i) change in method of accounting, or use of an incorrect method of accounting, by the Company or a Company Subsidiary for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed by the Company or a Company Subsidiary on or prior to the Closing Date, (iii) installment sale or open transaction disposition by the Company or a Company Subsidiary made on or prior to the Closing Date, or (iv) prepaid amount received by the Company or a Company Subsidiary on or prior to the Closing Date outside the ordinary course of business. The Company and the Company Subsidiaries will not be required to pay any installment of the “net tax liability” described in Section 965(h)(1) of the Code.
(vii) There are no Liens for Taxes upon any of the assets of the Company or any Company Subsidiary other than Permitted Liens.
(viii) Neither the Company nor any Company Subsidiary has (i) made any election to defer any payroll Taxes that remain unpaid, (ii) taken, claimed, or applied for an employee retention Tax credit or (iii) taken out or sought any loan that has not been paid back or forgiven or received any loan assistance in each case under the CARES Act, including pursuant to the Paycheck Protection Program or the Economic Injury Disaster Loan Program.
(ix) The unpaid Taxes of the Company and the Company Subsidiaries (i) did not, as of the Balance Sheet Date, exceed the reserve for Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Unaudited Financial Statements as of such date (rather than in any notes thereto) and (ii) will not, as of the end of the day on the Closing Date, exceed the amount of Taxes taken into account in the Final Closing Statement.
(x) Since December 31, 2022, neither the Company nor any Company Subsidiary has (i) incurred material liabilities for Taxes outside the ordinary course of business, (ii) made (except in the ordinary course of business), changed, revoked or modified any material Tax election, (iii) adopted or elected (except in the ordinary course of business) or changed any method of accounting for Tax purposes, (iv) filed any Tax Return that was prepared in a manner materially inconsistent with past practice, (v) filed any amended Tax Return, (vi) surrendered any right to, or filed any claim for, a material refund of Taxes, (vii) voluntarily approached a Taxing Authority with respect to Taxes or (viii) settled or compromised any audit, assessment, investigation, dispute, administrative or judicial proceeding or other action in respect of material Taxes.
(xi) All material Taxes that the Company or any of the Company Subsidiaries Subsidiary is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) . The Company and each of the Company Subsidiaries has have complied in all material respects with all information reporting (and related withholding) and record retention requirementsbackup withholding provisions of applicable Law, including properly completing and timely filing all IRS Forms W-2 and 1099 (and similar or corresponding forms required under state, local, foreign, or other applicable Law) required to be filed by such Company.
(vxii) Neither At all times since their formation or contribution to the Company nor any Company Subsidiary has waived any statute of limitations with respect Company, through the day immediately prior to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
, (viiii) Neither the Company nor any has been (and will be) validly treated as an “S corporation” within the meaning of Sections 1361 and 1362 of the Company Subsidiaries is a party to or is bound by any Tax sharingCode, allocation or indemnification agreement or arrangement and (other than such an agreement or arrangement exclusively between or among the Company ii) each of Galaxy Systems Inc., XxxxxX.Xxxxxxxxx Inc., XxxxxX.Xxxxxxxxxx Solutions, Inc., and the Company Subsidiaries).
XxxxxX.Xxxxxxxx Solutions Inc. has been (ixand will be) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise validly treated as part of a “plan (or series of related transactions)qualified subchapter S subsidiary” within the meaning of Section 355(e1361(b)(3)(B) of the Code or disregarded entity for federal and applicable state and local income tax purposes.
(xiii) The Company and the Company Subsidiaries have disclosed on their U.S. federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of which the Merger is also a part, a “distributing corporation” or a “controlled corporation” (U.S. federal income Tax within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 6662 of the Code.
(xxiv) Neither Each of the Company’s foreign Subsidiaries is treated as a disregarded entity for U.S. federal income tax purposes.
(xv) No Shareholder is a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2. The Company is not, nor any has it been, a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code) during the applicable period in Section 897(c)(1)(a) of the Code.
(xvi) The jurisdiction of formation and U.S. federal income tax classification of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2and each Company Subsidiary (other than XxxxxX.Xxxxxxxxx US Holdings Inc.) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction is set forth on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax lawSchedule 3.12(c)(xvii).
Appears in 1 contract
Samples: Merger Agreement (Endava PLC)
Other Tax Matters. Except as set forth in Schedule 3.8(c):
(i) No deficiency with respect to a material amount of Taxes has the Company, Subsidiary and Affiliate have not been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of a dispute or claim or an audit or other examination of Taxes by the Tax authorities of any Governmental Body, nor have the Company, Subsidiary or Affiliate received any notices from any such taxing authority relating to any issue which could have a Material Adverse Effect.
(ii) the Seller, the Company, Subsidiary and Affiliate have not (A) entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nationthe Subsidiary, state or locality nor has (B) contested the Company nor any Tax Liability of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit Company, Subsidiary or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary Affiliate before any court, tribunal or agencyGovernmental Body.
(iii) All material the Company, Subsidiary or Affiliate have not been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under Applicable Law with respect to Taxes that for any taxable period for which the Company or any statute of limitations has not expired other than the Company Subsidiaries consolidated group the parent of which is the Company.
(iv) all Taxes which the Company, Subsidiary and Affiliate are (or washave been) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each of there are no Tax sharing, allocation, indemnification or similar agreements in effect as between the Company Subsidiaries has complied in all material respects with all information reporting and/or the Subsidiary or any predecessor or Affiliate thereof and any other party (including the Seller and related withholdingany predecessors or Affiliates thereof) and record retention requirements.
(v) Neither under which the Company nor Purchaser, the Company, Subsidiary or Affiliate could be liable for any Company Subsidiary has waived Taxes or other claims of any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyPerson.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any is and has been a validly electing S Corporation within the meaning of the Company SubsidiariesCode §§1361 and 1362 at all times since September 11, 1992.
(vii) None the Subsidiary is not, and has never been treated as, a “qualified subchapter S subsidiary” within the meaning of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing DateCode §1361(b)(3)(B).
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by will not be liable for any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among under Code §1374 in connection with the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment deemed sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of ’s assets caused by the Code (or any corresponding provision of state, local or foreign Tax law§338(h).
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. (A) Neither the Company nor any Company Subsidiary is currently of its Subsidiaries has been the subject of an audit or other examination relating to the payment of material Taxes of the Company by any Taxing Authority; (B) no such audit is contemplated or such Company Subsidiary by a Taxing Authority of any nation, state or locality nor has pending; and (C) neither the Company nor any of the Company its Subsidiaries has received any written notices notices, orally or in writing, from any Taxing Authority that such an audit or examination is pending, or that relating to any issue which could affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any of its Subsidiaries, as of the Closing Date, (A) has entered into a Contract or waiver or been requested to enter into a Contract or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiary or any of its Subsidiaries, (B) is the beneficiary of any extension of time to file any Tax Return or pay any Tax, (C) is presently contesting any material the Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency, (D) has granted a power-of-attorney relating to Tax matters to any person or (E) has applied for and/or received a ruling or determination from a Taxing Authority regarding a past or prospective transaction of the Company or any of its Subsidiaries.
(iii) All material Taxes that Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under the Law of the United States, any foreign jurisdiction or any of state or locality other than such Tax Returns that include only the Company and any of its Subsidiaries and no other entities.
(iv) All Taxes which the Company and each of its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company payable and each of have been correctly and timely included in the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsappropriate Tax Return.
(v) Neither No claim has ever been made, orally or in writing, by any Taxing Authority in a jurisdiction where the Company nor or any of its Subsidiaries does not file Tax Returns that the Company Subsidiary has waived or any statute of limitations with respect its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of tax sharing, allocation, indemnification or similar Contracts in effect as between the Company or any of its Subsidiaries or any predecessor or affiliate thereof and any other party (including the Company Subsidiaries.
(viistockholders and any predecessors or affiliates thereof) None of under which Merger Sub, the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any of its Subsidiaries could be liable for any Taxes or other agreement with claims of any Taxing Authority, in each case that could have a materially adverse effect party after the Closing Date.
(viiivii) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Internal Revenue Code or any similar provision of the Internal Revenue Code or the corresponding tax Laws of any nation, state or locality.
(viii) No election under Section 341(f) of the Internal Revenue Code has been made or shall be made prior to the Closing Date to treat the Company or any of its Subsidiaries is as a party to or is bound by any Tax sharingconsenting corporation, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among as defined in Section 341 of the Company and the Company Subsidiaries)Internal Revenue Code.
(ix) Neither the Company nor any of its Subsidiaries is a party to any Contract that would require the Company or any of its Subsidiaries has beenor any affiliate thereof to make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the Internal Revenue Code.
(x) There are no security interests on any of the assets of the Company or any Subsidiary that arose, or as a result of the transactions contemplated by this Agreement could arise, in connection with any failure (or alleged failure) to pay any Taxes.
(xi) (A) There are no deferred intercompany transactions between the Company and any of its Subsidiaries or between its Subsidiaries and there is no excess loss account (within the past two years meaning of Treasury Regulations Section 1.1502-19 with respect to the stock of the Company or any of its Subsidiaries) which will or may result in the recognition of income upon the consummation of the transaction contemplated by this Agreement, and (B) there are no other transactions or facts existing with respect to the Company and/or its Subsidiaries which by reason of the consummation of the transaction contemplated by this Agreement or otherwise as part will result in the Company and/or its Subsidiaries recognizing income or reducing any deduction in periods following the Closing Date.
(xii) No Indebtedness of a the Company or any of its Subsidiaries consists of “plan (or series of related transactions)corporate acquisition indebtedness” within the meaning of Section 355(e) 279 of the Code Internal Revenue Code. The transactions contemplated in connection with this Agreement will not result in any cancellation of which indebtedness realized by the Company, any of its Subsidiaries, Merger is also a part, a “distributing corporation” Sub 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 tax-free treatment under Section 355 of the CodeParent.
(xxiii) Neither the Company nor any of the Company its Subsidiaries has participated in been a “listed transactionUnited States real property holding corporation” within the meaning of Treasury Regulations Section 1.6011897(c)(2) of the Internal Revenue Code at any time during the five-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax lawyear period ending on the date hereof.
(xixiv) Neither There is currently no limitation on the Company nor any utilization of the net operating losses, built-in losses, capital losses, Tax credits or other tax attributes of the Company or its Subsidiaries will be required to include any material item of income inunder Sections 382, 383 or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) 384 of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)Internal Revenue Code.
Appears in 1 contract
Samples: Merger Agreement (Emcore Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary of its Subsidiaries has been or is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Tax Authorities of any nation, state or locality (and no such audit is pending or contemplated) nor has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that relating to any issue which could reasonably be expected to materially affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any of its Subsidiaries (A) has entered into an agreement or waiver or requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiary or any of its Subsidiaries or (B) is presently contesting any material the Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agencyGovernmental Entity.
(iii) All material Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return provided for under Applicable Law with respect to Taxes for any Taxable period for which the statute of limitations has not expired (other than a group of which the Company and/or its Subsidiaries are the only members).
(iv) Taxes that the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The payable and the Company and each of its Subsidiaries have reported such withheld amounts to the Company Subsidiaries has complied in all material respects with all information reporting (appropriate Taxing Authority and related withholding) and record retention requirementsto each such employee, independent contractor, creditor, stockholder or any other third party, as required under Applicable Law.
(v) Neither No claim has ever been made by any Taxing Authority in a jurisdiction where the Company nor or its Subsidiaries does not file Tax Returns that the Company or any Company Subsidiary has waived any statute of limitations with respect its Subsidiaries is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due Tax sharing, allocation, indemnification or similar agreements in effect as between the Company or any predecessor or Affiliate thereof and payable) on any of the assets of other party under which the Company or any of the Company Subsidiariesits Subsidiaries could be liable for any Taxes or other claims of any party.
(vii) None The Company and each of its Subsidiaries has delivered or made available to Parent copies of each of the Tax Returns for income Taxes filed on behalf of the Company and the Company its Subsidiaries is a party to or bound by any closing agreementsince January 1, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date2007.
(viii) Neither the Company nor any of its Subsidiaries 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 of the following that occurred or exists on or prior to the Closing Date: (a) a “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law), (b) an installment sale or open transaction, (c) a prepaid amount, (d) an intercompany item under Treasury Regulation section 1.1502-13 or an excess loss account under Treasury Regulation 1.1502-19, or (e) change in the accounting method of the Company or any of its Subsidiaries is a party pursuant to Section 481 of the Code or is bound by any similar provision of the Code or the corresponding Tax sharinglaws of any nation, allocation state or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)locality.
(ix) Neither During the five-year period ending on the date of this Agreement, neither the Company nor any of the Company its Subsidiaries has been, within the past two years or otherwise as part of was a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, a “distributing corporation” corporation or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) corporation in a distribution of stock transaction intended to qualify for tax-free treatment under be governed by Section 355 of the Code.
(x) Neither the Company nor any of the Company its Subsidiaries has participated engaged in a “listed reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law4(b).
(xi) Neither the Company nor any of its Subsidiaries has a permanent establishment in any foreign country.
(xii) Neither the Company Subsidiaries will be required to include nor any material item of income inSubsidiary has requested, received or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement executed with any Taxing Authority, Authority any prepaid amount received on ruling or prior to the binding agreement which could have a material effect in a post-Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)period.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any Except as set forth in Section 3.07 of the Company Subsidiaries and remains unpaidSeller Disclosure Schedule, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records (A) none of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary Acquired Entities is currently the subject of an audit or other examination relating to the payment of material Taxes of by the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor any and (B) none of the Company Subsidiaries Acquired Entities has received any written notices notice from any Taxing Authority that such taxing authority relating to any issue which could have an audit or examination is pending, or that adverse effect in any material respect on the Company or any Tax liability of the Company Subsidiaries was required to file any Tax Return that was not filedAcquired Entities after the date hereof.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability None of the Company Acquired Entities has entered into an agreement or waiver that will be in effect after the date hereof or been requested to enter into an agreement or waiver that could be in effect after the date hereof extending any Company Subsidiary before any courtstatute of limitations relating to the payment, tribunal assessment or agencycollection of Taxes of the Acquired Entities.
(iii) All material Taxes that the Company or which any of the Company Subsidiaries is (or was) Acquired Entities was required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member non-resident or other third party have been duly withheld or collectedcollected (including, but not limited to, Code Section 3402), and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Company and each There are no tax sharing, allocation, indemnification or similar agreements in effect as between any of the Company Subsidiaries has complied in all material respects with all information reporting Acquired Entities and any other Person (and related withholdingother than the Acquired Entities) and record retention requirementsunder which the Acquired Entities could be liable for the Taxes of another Person after the date hereof.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations There are no Liens with respect to any Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencythe Acquired Entities other than Permitted Liens.
(vi) There are No jurisdiction where no liens Tax Return has been filed or no Tax has been paid by any Acquired Entity has made a claim for material Taxes (except Taxes not yet due and payable) on the payment of any Acquired Entity Tax or the filing of the assets of the Company or any of the Company SubsidiariesAcquired Entity Tax Return.
(vii) None of the Company and the Company Subsidiaries No Acquired Entity is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, federal taxable income in for any taxable Tax period (or portion thereof) ending after the Closing Date Date, as a result of a change in method of accounting, any closing agreement, installment sale or open transaction or any prepaid amount.
(viii) No Acquired Entity is or has ever been a beneficiary of or otherwise participated in any reportable transaction within the meaning of Treasury Regulation Section 1.6011-4(b)(1).
(ix) No Acquired Entity has distributed stock of another Person nor has its stock been distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code Section 355.
(x) The representations and warranties in this Section 3.07 are the sole and exclusive representations and warranties of the Seller regarding Tax matters of the Acquired Entities and refer only to the past activities of the Acquired Entities and are not intended to serve as a representation to or a guarantee of, nor can they be relied upon for, any Tax position taken on or prior to after the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Purchase Agreement (Hennessy Capital Acquisition Corp.)
Other Tax Matters. (i) No deficiency with respect to a material amount (A) there are no audits or other examinations of Taxes has been proposed, asserted or assessed against by the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority appropriate tax authori- ties of any nation, state or locality nor has currently in progress (or to the knowledge of Companies scheduled as of the Closing Date to be conducted), (B) there have been no audits or other examinations relating to Federal income taxes of Arcon Holdings or the Company nor any which have resulted in an adjustment in Federal income tax liability, (C) there are no taxable years or other taxable periods of Arcon Holdings or the Company which will not be subject to the normally applicable statute of limitations by reason of the existence of circumstances that would cause any such statute of limitations for applicable Taxes to be extended, (D) no taxing authority has notified Arcon Holdings or the Company Subsidiaries that it has proposed or assessed any adjustments or assessed any deficiency relating to any Returns for Tax liability of Arcon Holdings or the Company and (E) neither Arcon Holdings nor the Company has received any written notices notice from any Taxing Authority that such an audit taxing authority relating to any issue which could affect the Tax liability of Arcon Holdings or examination is pendingthe Company, which issue has not been finally determined and which, if determined adversely to Arcon Holdings or that the Company or any of the Company Subsidiaries was required to file any Company, could result in a Tax Return that was not filedliability.
(ii) Neither Except for the Company nor consolidated, unitary or combined Returns filed by Arcon Holdings that have included the Company, as set forth on Schedule 3.14 hereto, the Companies have not been included in any Company Subsidiary is presently contesting any material Tax liability "consolidated," "unitary" or "combined" Return provided for under the law of the Company United States, any foreign jurisdiction or any Company Subsidiary before state or locality with respect to Taxes for any court, tribunal or agencytaxable period for which the statute of limitations has not expired.
(iii) All material Taxes that which Arcon Holdings or the Company or any of the Company Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(iv) The Neither Arcon Holdings nor the Company and each is a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Company Subsidiaries has complied in all material respects with all information reporting Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (and related withholding) and record retention requirementsthe "Code").
(v) Neither There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between Arcon Holdings or the Company nor or any predecessor or affiliate thereof and any other party (including any of the Sellers and any predecessor or affiliate thereof) under which the Purchaser, Arcon Holdings or the Company Subsidiary has waived could be liable for any statute Taxes or other claims of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyparty.
(vi) There are no liens Neither Arcon Holdings nor the Company has applied for, been granted, or agreed to any accounting method change for material Taxes (except Taxes not yet due and payable) on which it will be required to take into account any adjustment under Section 481 of the assets Code or any similar pro- vision of the Company Code or the corresponding tax laws of any of the Company Subsidiariesnation, state or locality.
(vii) None At and after giving effect to Closing there will not be any indebtedness of Arcon Holdings or the Company that consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing DateCode.
(viii) Neither Arcon Holdings nor the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such that would require it to make any payment that would constitute an agreement or arrangement exclusively between or among the Company "excess parachute payment" for purposes of Sections 280G and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 4999 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Stock Purchase Agreement (Specialty Paperboard Inc)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposedExcept as set forth on Schedule 3.13, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither ----------------- ------------- neither the Company nor any Company Subsidiary is currently of its subsidiaries has been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has the Company nor or any of the Company Subsidiaries its subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could affect the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any of its subsidiaries.
(ii) Except as set forth on Schedule 3.13, neither Parent nor the ------------- Company, or any of its subsidiaries has, as of the Closing Date, (A) entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company Subsidiary or any of its subsidiaries or (B) is presently contesting the Tax liability of the Company or any of its subsidiaries before any court, tribunal or agency.
(iii) Except as set forth on Schedule 3.13, neither the Company nor any of its subsidiaries has been included in any "consolidated," "unitary" or "combined" Return provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All material Taxes that which the Company or any of the Company Subsidiaries its subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each of Except as set forth on Schedule 3.13, there are no tax sharing, ------------- allocation, indemnification or similar agreements in effect as between the Company Subsidiaries has complied in all material respects with all information reporting or any predecessor or affiliate thereof and any other party (including Parent and related withholdingany predecessors or affiliates thereof) and record retention requirementsunder which Purchasers or the Company or any of its subsidiaries could be liable for any Taxes or other claims of any party.
(vvi) Neither the Company nor any Company Subsidiary of its subsidiaries has waived any statute of limitations with respect to Taxes nor applied for, been granted, or agreed to any extension accounting method change for which it will be required to take into account any adjustment under Section 481 of time with respect to a Tax assessment the Code or deficiencyany similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(vivii) There are no liens for material Taxes (except Taxes not yet due and payableNo election under Section 341(f) on any of the assets of Code has been made or shall be made prior to the Closing Date to treat the Company or any of the Company Subsidiaries.
(vii) None its subsidiaries as a consenting corporation, as defined in Section 341 of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing DateCode.
(viii) Neither the Company nor any of the Company Subsidiaries its subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such that would require it to make any payment that would constitute an agreement or arrangement exclusively between or among the Company "excess parachute payment" for purposes of Sections 280G and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 4999 of the Code.
(xix) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date Except as a result of actions taken by the Company (whether prior to or subsequent to the date hereof) that are prohibited by Section 6.1 and 6.2 of the Tax Sharing Agreement or as a result of the failure of the Purchasers' representation in Section 4.10 of this Agreement to be true and correct as of the date of this Agreement and as of the Closing Date, the Spin- Off will qualify as a tax free distribution pursuant to Section 368 and/or Section 355 of the Code and any closing agreementanalogous state income tax provisions; provided that notwithstanding anything to the contrary contained herein, installment sale or open transaction Parent and the Company shall not be deemed to make this representation and warranty on or the date of this Agreement, but only on the date of, and only in the event of, the consummation of the Spin-Off (which shall be the Closing Date); it being expressly understood that such representation shall not be deemed to relate to any period prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Stock Subscription Agreement (Specialty Products & Insulation Co)
Other Tax Matters. (iA) No deficiency with respect to a material amount During the last three (3) years or for any period that is open on the Closing Date under the applicable statute of Taxes has been proposedlimitations, asserted neither Sellers nor the Companies or assessed against the Company or any of the Company their Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority Tax authorities of any nation, state or locality with respect to the Companies or their Subsidiaries, (B) to the Knowledge of Sellers or any officer or employee of either Seller, no such audit is contemplated or pending and (C) neither Sellers nor the Companies or their Subsidiaries has the Company nor any of the Company Subsidiaries received any written notices notice from any Taxing Authority Tax authority relating to any issue that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file could affect any Tax Return that was not filedliability with respect to the Companies or their Subsidiaries.
(ii) Neither Sellers nor the Company nor Companies or their Subsidiaries, as of the Closing Date, (A) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any Company Subsidiary is statute of limitations relating to the payment or collection of Taxes with respect to the Companies or their Subsidiaries that has not expired and (B) are presently contesting any material a Tax liability of with respect to the Company Companies or any Company Subsidiary their Subsidiaries before any court, tribunal or agency.
(iii) All material Taxes that Sellers, the Company Companies or any of the Company their Subsidiaries is are (or waswere) required by Applicable Law to withhold or collect with respect to the Companies or their Subsidiaries in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper Tax authorities to the extent due and payable.
(iv) The Company and each of There is no pending or unresolved written claim by any Tax authority in a jurisdiction where Sellers or the Company Companies or their Subsidiaries has complied do not file Tax Returns, or in all material respects with all information reporting (and related withholding) and record retention requirementswhich the Companies or their Subsidiaries are or may be subject to Tax by such jurisdiction.
(v) Neither There are no material security interests on any of the Company nor Equity Interests or the assets of the Companies or their Subsidiaries that arose in connection with any Company Subsidiary has waived failure (or alleged failure) to pay any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyTaxes.
(vi) There are no liens for material Taxes Tax-sharing, allocation, indemnification or similar Contracts in effect as between the Companies or any predecessor or Affiliate thereof and any other party (except Taxes not yet due including Sellers and payableany predecessors or Affiliates thereof) on any of under which Purchaser, the assets of the Company Companies or any of their Subsidiaries could be liable for any Taxes or other claims of any party, excluding Liabilities under customary commercial leases or Contracts entered into in the Company Subsidiaries.
(vii) None ordinary course of business or, prior to the Company and Closing, under the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Seller Loan Documents. Neither the Company nor any of its Subsidiaries has any liabilities for any other Persons under Treasury Regulation Section 1.1502-6 or the Company Subsidiaries is a party to analogous provisions of any state, local or is bound by foreign Law for any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries)Taxes that have not been paid.
(ixvii) Neither the Company nor any Sellers have delivered or made available to Purchaser true and complete copies, including all amendments thereto, of each of the Company Subsidiaries has beenTax Returns for income Taxes filed on behalf of BMR for tax years ending on or after April 30, within the past two years or otherwise as part of a 2007.
(viii) Sellers are not “plan (or series of related transactions)foreign persons” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 1445 of the Code.
(ix) BMR is, and has been, a partnership for U.S. federal and state income tax purposes since formation.
(x) Neither the Company nor any of the Company Subsidiaries FCR is, and has participated in been, a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of statedisregarded entity for U.S. federal and state income tax purposes since April 28, local or foreign Tax law2006.
(xi) Neither the Company nor any Each Subsidiary of the Company Subsidiaries will be required to include any material item of FCR (other than BMR) is, and has been, a disregarded entity for U.S. federal and state income intax purposes since April 28, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)2006.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Casella Waste Systems Inc)
Other Tax Matters. Subject to Section 3.05, with respect to certain Tax matters, Parent and the Equityholders agree as follows:
(i) No deficiency To treat (and have the Company treat) any Transaction Expenses and Company RSUs paid, payable or accrued on or before the Closing Date as deductible in a Pre-Closing Tax Period to the extent allowable under Applicable Law.
(ii) To the extent it could increase the Tax liability of the Company or the Equityholders for a Pre-Closing Tax Period or otherwise result in a claim for Indemnified Taxes under this Agreement, without the written prior consent of Unitholder Representative, such consent not to be unreasonably withheld, conditioned, or delayed, Parent shall not, and shall cause the Company and Surviving Company not to, except where required by Applicable Law on a "more likely than not" basis and with notification of such basis to the Unitholder Representative or a final determination of a Tax Authority, (i) amend or cause the amendment of a Tax Return of the Company for a Pre-Closing Tax Period or a Straddle Period; (ii) change an annual accounting period, adopt or change any accounting method, file or amend any Tax election concerning the Company for a Pre-Closing Tax Period or a Straddle Period; (iii) extend or waive the applicable statute of limitations with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any Tax of the Company Subsidiaries and remains unpaid, except for such deficiencies a Pre-Closing Tax Period; (iv) file any ruling request with any Governmental Authority that are being contestedrelates to Taxes or Tax Returns of the Company for a Pre-Closing Tax Period or a Straddle Period; or (v) initiate or participate in any voluntary disclosure program with any Governmental Authority regarding any Tax (or potential Taxes) or Tax Returns of the Company, or that will be contested, initiate the filing of any Tax Return(s) in each case, any jurisdiction(s) in good faith, andwhich the Company has not historically filed such Tax Returns(s), in each case, for which adequate reserves have been established a Pre-Closing Tax Period.
(iii) Parent shall not, and shall not allow the Company to, engage in any transaction after the Closing, but on the books Closing Date, that is outside the ordinary course of business and records is not contemplated by this Agreement and that will increase the amount of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by the Equityholders for a Taxing Authority of any nation, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Pre-Closing Tax Return that was not filedPeriod.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to the proper authorities to the extent due and payable.
(iv) The Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiency.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Anika Therapeutics, Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes The Company is not currently or has not been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently the subject of an audit or other examination relating to the payment of a material amount of Taxes of the Company or such Company Subsidiary by a Taxing Authority the Tax authorities of any nation, state or locality (and no such audit is pending or, to the Knowledge of the Sellers, contemplated) nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority authority that such an audit or examination is pending, pending or that relating to any issue which would reasonably be expected to affect the Company or any Tax liability of the Company Subsidiaries was required to file any Tax Return that was not filedCompany.
(ii) Neither The Company (A) has not entered into a written agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes of the Company nor any Company Subsidiary that has not expired or (B) is not presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agencyGovernmental Entity.
(iii) The Company has not been included in any “consolidated”, “unitary” or “combined” Return provided for under the Law of the United States, any non‑U.S. jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All material Taxes that the Company or any of the Company Subsidiaries is are (or waswere) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party Person have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each To the Knowledge of the Company Subsidiaries Sellers, no written claim has complied ever been made by any Taxing authority in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither a jurisdiction where the Company nor any does not file Returns that the Company Subsidiary has waived any statute of limitations with respect is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries No Seller is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)foreign person” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 1445 of the Code.
(xvii) Neither There are no Tax‑sharing, allocation, indemnification or similar Contracts in effect as between the Company nor or any predecessor or Affiliate thereof and any other party (including the Sellers) under which the Purchaser or the Company could be liable for any Taxes or other claims of any party.
(viii) The Sellers have delivered or made available to the Purchaser true and complete copies, including all amendments thereto, of each of the Returns for income Taxes filed on behalf of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of statesince January 1, local or foreign Tax law2018.
(xiix) Neither the The Company nor any of the Company Subsidiaries will not be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in for any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale of the following that occurred or open transaction exists on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to : (A) a “closing agreement” as described in Section 108(i) 7121 of the Code (or any corresponding or similar provision of state, local or foreign non‑U.S. income Tax lawLaw); (B) made with respect an installment sale or open transaction; (C) a prepaid amount; (D) an intercompany item under Treasury Regulation Section 1.1502‑13 or an excess loss account under Treasury Regulation Section 1.1502‑19; or (E) a change in the accounting method of the Company pursuant to Section 481 of the Code or any taxable similar provision of the Code or the corresponding Tax Laws of any nation, state or locality.
(x) During the five (5) year period ending on the date of this Agreement, the Company was not a distributing corporation or prior a controlled corporation in a transaction intended to be governed by Section 355 of the Closing Date, or, to Code.
(xi) The Company has not engaged in a “reportable transaction” within the Knowledge meaning of Treasury Regulations Section 1.6011‑4(b).
(xii) The Company is and has been since inception treated as a subchapter C corporation for U.S. federal income tax purposes.
(xiii) There are no Liens for Taxes upon the assets or properties of the Company, except for Permitted Liens.
(xiv) The Company has not deferred or delayed the payment of any intercompany transaction or excess loss account described in Section 1502 Taxes under provisions of the Code (CARES Act or any corresponding provision executive order, or has otherwise availed themselves of state, local any Tax benefits or foreign Tax law)deferrals provided under the CARES Act.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary of its Subsidiaries is currently or, since January 1, 2018, has ever been the subject of an audit or other examination relating to Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority taxing authorities of any nation, state or locality (and no such audit is pending or, to the Knowledge of the Company, contemplated) nor since January 1, 2018 has the Company nor or any of the Company its Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could reasonably be expected to affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any Company Subsidiary is presently contesting of its Subsidiaries has entered into a written agreement or waiver extending any material Tax liability statute of limitations relating to the assessment, payment or collection of Taxes of the Company or any Company Subsidiary before any courtsuch Subsidiary, tribunal or agencyas applicable, that has not expired.
(iii) All material Taxes that There are no Tax‐sharing, allocation, indemnification or similar Contracts in effect as between the Company or any predecessor or Affiliate thereof and any other party under which Purchaser, the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to could be liable for any employee, independent contractor, creditor, stockholder, member Taxes or other third party have been duly withheld or collected, and have been paid over claims relating to the proper authorities to the extent due and payableTaxes of any party.
(iv) The During the five-year period ending on the date of this Agreement, neither the Company and each nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsCode.
(v) Neither the Company nor any Company Subsidiary of its Subsidiaries has waived engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011‐4(b) or any statute corresponding or similar provision of limitations with respect to Taxes nor agreed to any extension of time with respect to a state, local or non‐U.S. income Tax assessment or deficiencyLaw.
(vi) There are no liens Liens for material Taxes (except Taxes not yet due and payable) on the Company or any of the its Subsidiaries or any assets of the Company or any of the Company Subsidiariesits Subsidiaries other than Permitted Liens.
(vii) None All transactions entered into between or among the Company, its Subsidiaries, and their respective Affiliates have been entered into on terms that would properly be considered arm’s length, consistent in all material respects with what would have been agreed to between unrelated third parties, and no adjustment is required with respect to any such transactions pursuant to Section 482 of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, Code or any other agreement with similar provision of any Taxing Authoritystate, in each case that could have a materially adverse effect after the Closing Datelocal or foreign Law.
(viii) Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary,” or “combined” Tax Return provided for under the Company Subsidiaries is a party Law of the United States, any non-U.S. jurisdiction or any state, province, prefect or locality with respect to or is bound by Taxes for any Tax sharing, allocation or indemnification agreement or arrangement taxable period for which the statute of limitations has not expired (other than such an agreement or arrangement exclusively between or among a group of which the Company and its Subsidiaries are the Company Subsidiariesonly members).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law).
Appears in 1 contract
Samples: Securities Purchase Agreement (Global Clean Energy Holdings, Inc.)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any As of the Company Subsidiaries and remains unpaiddate hereof, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither neither the Company nor any Company Subsidiary of the MIC Hawaii Companies is currently the subject of an audit or other examination relating to the payment of material Taxes of the Company or such MIC Hawaii Company Subsidiary by a any Taxing Authority of any nationAuthority, state or locality nor has the Company nor or any of the Company Subsidiaries MIC Hawaii Companies received any written notices from any Taxing Authority that such an audit or examination is contemplated or pending, or that . All deficiencies for Taxes assessed against the Company or any of the MIC Hawaii Company Subsidiaries was required have either been fully paid or appropriate reserves have been established with respect to file any Tax Return that was not filedsuch deficiencies in accordance with GAAP.
(ii) Neither the Company nor any Company Subsidiary of the MIC Hawaii Companies is presently contesting any material Tax liability of the Company or any such MIC Hawaii Company Subsidiary before any court, tribunal or agency.
(iii) All material The Company and each MIC Hawaii Company has complied in all respects with all applicable Laws relating to the reporting, payment, and withholding of Taxes that the Company or any and all Taxes which each of the Company Subsidiaries and each MIC Hawaii Company is (or was) required by Applicable Law to withhold or collect in connection with collect, including sales and use taxes, goods and services taxes, and all amounts paid or owing required to be withheld for Taxes of any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collectedcollected and, to the extent due and payable, have been paid over to the proper authorities Taxing Authorities. All information Returns required to be filed by the extent due Company and payableeach MIC Hawaii Company have been filed, and all statements required to be furnished to payees by the Company and any MIC Hawaii Company have been furnished to such payees, and the information set forth on such information Returns and statements is accurate and complete in all respects.
(iv) The Company and each There are no Liens (other than Permitted Liens) on any of the properties or assets of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirementsor any of the MIC Hawaii Companies.
(v) Neither the Company nor any Company Subsidiary of the MIC Hawaii Companies has waived been granted or been requested to grant any statute waiver (that has not expired) of any statutes of limitations with respect to Taxes nor agreed applicable to any claim for Taxes, and neither the Company nor any of the MIC Hawaii Companies has requested or been granted an extension of the time with respect to a Tax assessment or deficiency(that has not expired) for filing any Return.
(vi) There are no liens for material Taxes (except Taxes not yet due and payable) on any of the assets of the Company or any of the Company Subsidiaries.
(vii) None of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any MIC Hawaii Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. income tax Law) executed on or prior to the Closing; (C) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), (D) installment sale or open transaction disposition made on or prior to the Closing; (E) prepaid amount received or deferred revenue accrued on or prior to the Closing other than in the ordinary course of business, or (F) election pursuant to Section 965(h) of the Code. There is no application pending with any Taxing Authority requesting permission for a change in any accounting method of the Company Subsidiaries or any MIC Hawaii Company, and the IRS has not issued in writing any pending proposal regarding any such adjustment or change in accounting method.
(vii) Other than with respect to that certain Second Amended and Restated Macquarie Infrastructure Corporation LLC Income Tax Sharing Agreement effective as of December 24, 2009, neither the Company nor any of the MIC Hawaii Companies is a party to any tax sharing agreement, tax allocation agreement, tax indemnification agreement, or is bound by any Tax sharing, allocation or indemnification agreement or arrangement other similar Contract (other than any such an agreement or arrangement exclusively between or among Contract entered into in the ordinary course of business not primarily related to Taxes).
(viii) Other than pursuant to the Reorganization, neither the Company and nor any of the Company Subsidiaries)MIC Hawaii Companies has ever distributed stock of another Person, or 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 361 of the Code.
(ix) Neither the Company nor any of the Company Subsidiaries MIC Hawaii Companies has been, within the past two years or otherwise as part of ever entered into a “plan (or series of related transactions)reportable transaction” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 taxTreasury Regulation §1.6011-free treatment under Section 355 of the Code4.
(x) Within the past five (5) years, no written claim has been made by a Taxing Authority in a jurisdiction where Returns with respect to the Company or any of the MIC Hawaii Companies are not filed asserting that the Company or such MIC Hawaii Company, as applicable, is or may be subject to Tax in that jurisdiction. Neither the Company nor any of the Company Subsidiaries MIC Hawaii Companies has participated a permanent establishment or fixed place of business in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of statecountry other than the United States. Within the past five (5) years, neither the Company nor any MIC Hawaii Company has received a nexus questionnaire from any state or local tax jurisdiction in which such entity does not file any Returns or foreign Tax lawremit any Taxes.
(xi) Within the past five (5) years, neither the Company nor any MIC Hawaii Company has deferred any payroll Taxes or availed itself of any of the Tax deferral, credits (including the “employee retention credit”) or benefits pursuant to the CARES Act or otherwise taken advantage of any change in applicable Law in connection with the COVID-19 outbreak that has the result of temporarily reducing (or temporarily delaying the due date of) otherwise applicable Tax payment obligations of such entity.
(xii) Neither the Company nor any MIC Hawaii Company is party to any joint venture, partnership, or other Contract, which is treated as a partnership for federal income tax purposes.
(xiii) The Company and each MIC Hawaii Company is in compliance in all respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating its transfer pricing practices and methodologies. The prices for any property or services (or for the use of any property) provided by or to the Company or any MIC Hawaii Company are arm’s length prices for purposes of the relevant transfer pricing law, including Treasury Regulations promulgated under Section 482 of the Code. No Taxing Authority has given the Company Subsidiaries will be required or any MIC Hawaii Company written notice that it is asserting or threatening to include assert a claim against the Company or any material item MIC Hawaii Company under transfer pricing laws within the past five (5) years.
(xiv) No power of income inattorney related or attributable to Taxes that currently is in effect has been granted by the Company or any MIC Hawaii Company. Neither the Company nor any MIC Hawaii Company has requested, received or is subject to a ruling from any Taxing Authority.
(xv) Neither the Company nor any MIC Hawaii Company has been included in any “consolidated,” “unitary,” “combined” or similar Return in the United States or any non-U.S. jurisdiction or any state (other than a group of which MIC Hawaii or MIC is or was the common parent). Neither the Company nor any MIC Hawaii Company is liable for the Taxes of any Person other than the Company, any MIC Hawaii Company, or to exclude any material item of deduction from, taxable income in any taxable period MIC (or portion thereofany entity that was a part of the MIC consolidated, combined or unitary group) ending after the Closing Date as a result of any closing agreementfiling unitary, installment sale combined, or open transaction on consolidated Returns (including under Treasury Regulation §1.1502-6), as a transferee or prior to the Closing Datesuccessor, any accounting method change by Contract or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge of the Company, any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law)otherwise.
Appears in 1 contract
Other Tax Matters. (i) No deficiency with respect 10.3.1 The Group has paid all Taxes shown to a material amount of be due on any tax returns and any other Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the any Group Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor is liable, including any Company Subsidiary is currently the subject of an audit fine, penalty or other examination relating to the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority of any nationinterest, state or locality nor has the Company nor any of the Company Subsidiaries received any written notices from any Taxing Authority that such an audit or examination is pending, or that the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filed.
(ii) Neither the Company nor any Company Subsidiary is presently contesting any material Tax liability of the Company or any Company Subsidiary before any court, tribunal or agency.
(iii) All material Taxes that the Company or any of the Company Subsidiaries is (or was) required by Applicable Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member or other third party have been duly withheld or collected, and have been paid over to and no arrangement or agreement has been entered into by, or in relation to, any Group Company which extends the proper authorities to the extent due and payableperiod of assessment or payment of any Taxes.
(iv) The 10.3.2 No Group Company and each of the Company Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither the Company nor any Company Subsidiary has waived any statute statutory period of limitations with in respect to of Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencyassessments or deficiencies in connection therewith.
(vi) There are no liens 10.3.3 All material records which any Group Company is required to keep for material Taxes (except Taxes not yet due Tax purposes, or which would be needed to substantiate any claim made or position taken in relation to Tax by the relevant Group Company, have been kept within the possession and payable) on any control of the assets of Seller and the Company or any of the Company SubsidiariesGroup Companies.
(vii) None of the 10.3.4 No Group Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 of the Code.
(x) Neither the Company nor any of the Company Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither the Company nor any of the Company Subsidiaries will be required to include any material item of income in, or to exclude any material item of deduction from, taxable income involved in any taxable period (dispute or portion thereof) ending after the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) of the Code (or any corresponding provision of state, local or foreign Tax law) made with respect to any taxable period ending on or prior to the Closing Date, non-routine audit or, to the Knowledge best of the CompanySeller’s knowledge, information and belief, any intercompany transaction investigation (material or excess loss account described otherwise) in Section 1502 relation to Tax with a Tax Authority.
10.3.5 To the best of the Code Seller’s knowledge, information and belief, no Group Company is involved with any investigations of any submitted Tax returns of the Group Companies by any applicable governmental authority and to the best of the Seller’s knowledge, information and belief, there is no potential dispute or investigation in respect of any submitted Tax returns for the Group Companies by any Tax Authority.
10.3.6 As at Closing, all documents of title in relation to the Property and any transfer documents in relation to the Property, the Shares and Subsidiaries' Shares or equity of the Subsidiaries executed prior to Closing (other than this Agreement and in relation to the transactions contemplated hereunder) have been duly stamped and registered in accordance with applicable law and any and all applicable stamp duty, transfer or registration Taxes have been paid in full.
10.3.7 No Group Company has been or is involved in any corresponding provision transaction which had or has a sole, main or dominant purpose of stateavoiding Taxes or which is otherwise subject to counteraction under any applicable anti-avoidance Tax laws.
10.3.8 To the best of the Seller’s knowledge, local information and belief, the Group Companies have paid, withheld, deducted or foreign accounted for all Taxes (including interim Taxes) required to be paid, withheld, deducted or accounted for by it to the relevant Tax law)Authorities when such Taxes were due. Since 20 September 2007, no Group Company has been subject to or liable for any penalty, fine, surcharge or interest in connection with Taxes which remains unpaid as at the date of this Agreement.
10.3.9 To the best of the Seller’s knowledge, information and belief, all material transactions and other dealings between any Group Company and any third person (including any affiliate) have been conducted at arm's length with a substantial business reason, the main purpose or one of the main purposes of which has not been to avoid Tax. Since 20 September 2007, the Group Companies have not received any challenge by the competent tax authorities in relation to transfer pricing in respect of any such transfers and dealings.
Appears in 1 contract
Samples: Share Purchase Agreement (CAESARS ENTERTAINMENT Corp)
Other Tax Matters. (i) No deficiency with respect to a material amount of Taxes has been proposed, asserted or assessed against the Company or any of the Company Subsidiaries and remains unpaid, except for such deficiencies that are being contested, or that will be contested, in each case, in good faith, and, in each case, for which adequate reserves have been established on the books and records of the Company and the Company Subsidiaries in accordance with U.S. GAAP. Neither the Company nor any Company Subsidiary is currently of its Subsidiaries (A) has been the subject of an audit or other examination relating to of Taxes by the payment of material Taxes of the Company or such Company Subsidiary by a Taxing Authority tax authorities of any nation, state or locality nor has nor, to the Company nor any knowledge of the Company Subsidiaries Company, is such an audit contemplated or pending or (B) has received any written notices from any Taxing Authority that such an audit or examination is pending, or that taxing authority relating to any issue which could affect the Tax liability of the Company or any of the Company Subsidiaries was required to file any Tax Return that was not filedits Subsidiaries.
(ii) Neither the Company nor any Company Subsidiary of its Subsidiaries (A) has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of the Company, (B) is presently contesting any material the Tax liability of the Company or any Company Subsidiary of its Subsidiaries before any court, tribunal or agency, (C) has granted a power-of-attorney relating to Tax matters to any Person or (D) has applied for and/or received a ruling of determination from a taxing authority regarding a past or prospective transaction of the Company.
(iii) Neither the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary” or “combined” Tax Return (other than as a member of an affiliated group the common parent of which was the Company) provided for under the law of the United States, any foreign jurisdiction or any state or locality with respect to Taxes for any taxable period for which the statute of limitations has not expired.
(iv) All material Taxes that which the Company or any of the Company its Subsidiaries is (or was) required by Applicable Law law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.
(ivv) The Company and each of No claim has ever been made by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries has complied in all material respects with all information reporting (and related withholding) and record retention requirements.
(v) Neither does not file Tax Returns that the Company nor any Company or such Subsidiary has waived any statute of limitations with respect is or may be subject to Taxes nor agreed to any extension of time with respect to a Tax assessment or deficiencytaxation by that jurisdiction.
(vi) There are no liens tax sharing, allocation, indemnification or similar agreements in effect as between (A) the Company or any predecessor, Subsidiary or other Affiliate thereof and (B) any other party (including any Stockholder and any predecessor or Affiliate thereof) under which the Buyer or the Company or any Subsidiary thereof (before and after giving effect to the Merger) could be liable for any Taxes or other claims of any party after the Closing Date.
(vii) Neither the Company nor any of its Subsidiaries has applied for, been granted, or agreed to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(viii) Neither the Company nor any of its Subsidiaries is a party to any agreement that would require the Company or any of its Subsidiaries or any Affiliate thereof to make any payment (and neither the Company nor any of its Subsidiaries will make any such payment on or prior to the Closing Date) that would, in connection with the transactions contemplated by this Agreement, constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the Code.
(ix) The Company and each of its Subsidiaries has delivered or made available to the Buyer or its representative copies of each of the Tax Returns for income Taxes filed on behalf of the Company.
(x) There are no material Taxes (except Taxes not yet due and payable) security interests, other than Permitted Encumbrances, on any of the assets of the Company or any of the Company Subsidiariesits Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Taxes.
(viixi) None No indebtedness of the Company and the Company Subsidiaries is a party to or bound by any closing agreement, private letter rulings, technical advance memoranda, offer in compromise, or any other agreement with any Taxing Authority, in each case that could have a materially adverse effect after the Closing Date.
(viii) Neither the Company nor any of the Company its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and the Company Subsidiaries).
(ix) Neither the Company nor any consists of the Company Subsidiaries has been, within the past two years or otherwise as part of a “plan (or series of related transactions)corporate acquisition indebtedness” within the meaning of Section 355(e) of the Code of which the Merger is also a part, 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 tax-free treatment under Section 355 279 of the Code.
(xxii) Neither (A) there are no deferred intercompany transactions between the Company nor and any of the Company its Subsidiaries has participated in a “listed transaction” or between its Subsidiaries and there is no excess loss account (within the meaning of Treasury Regulations Section 1.60111.1502-4(b)(2) or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xi) Neither 19 with respect to the Company nor any stock of the Company Subsidiaries or any of its Subsidiaries) which will be required to include any material item or may result in the recognition of income in, or to exclude any material item of deduction from, taxable income in any taxable period (or portion thereof) ending after upon the Closing Date as a result of any closing agreement, installment sale or open transaction on or prior to the Closing Date, any accounting method change or agreement with any Taxing Authority, any prepaid amount received on or prior to the Closing Date, any election pursuant to Section 108(i) consummation of the Code transactions contemplated by this Agreement, and (B) there are no other transactions or any corresponding provision of state, local or foreign Tax law) made facts existing with respect to any taxable period ending on or prior to the Closing Date, or, to the Knowledge Company and/or its Subsidiaries which by reason of the Company, any intercompany transaction or excess loss account described in Section 1502 consummation of the Code (or any corresponding provision of state, local or foreign Tax law)transactions contemplated by this Agreement will result in the Company and/or its Subsidiaries recognizing income.
Appears in 1 contract
