Other Tax Matters. (i) Neither Target nor any of its Subsidiaries is currently the subject of an audit, judicial proceeding or other examination in respect of Taxes by the tax authorities of any nation, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that could affect the Tax liability of Target or any of its Subsidiaries. (ii) Neither Target nor any of its Subsidiaries has or will have, as of the Closing Date, entered into an 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 Target or any of its Subsidiaries that is currently in effect. (iii) Since August 1, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary income Tax Return under United States federal, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.). (iv) All material Taxes that Target and/or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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. (v) To the Knowledge of Target, during the last three years, no claim has been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction. (vi) Neither Target nor any of its Subsidiaries 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 Closing Date. (vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement. (viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code). (ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent. (x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes. (xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects. (xii) Neither Target nor any of its 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 Section 355 of the Code. (xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code. (xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate. (xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Mobile Storage Group Inc), Merger Agreement (Mobile Mini Inc), Merger Agreement (Mobile Services Group Inc)
Other Tax Matters. (i) Neither Target nor any Except as set forth on Schedule 4.10, none of its Subsidiaries is currently the FAFCO Members has been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality (and, to nor have the Knowledge of Target, no such audit, judicial proceeding FAFCO Members or other examination is contemplated) nor has Target or any of its Subsidiaries the FAREISI Business received any written notices from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target or any of its Subsidiariesthe FAREISI Business.
(ii) Neither Target nor any Except as set forth on Schedule 4.10, none of its Subsidiaries has or will havethe FAFCO Members has, as of the Closing Date, (A) entered into an 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 Target the FAREISI Business or (B) is presently contesting the Tax liability of the FAREISI Business before any of its Subsidiaries that is currently in effectcourt, tribunal or agency.
(iii) Since August 1Except as set forth on Schedule 4.10, 2006, and to none of the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries FAFCO Members has been a member included in any "consolidated," "unitary" or "combined" Return provided for under the law of an affiliated group filing a consolidatedthe United States, combined any foreign jurisdiction or unitary income Tax Return under United States federal, any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material Taxes that Target and/or any of its Subsidiaries is which FAFCO, the FAFCO Members or the FAREISI Business are (or waswere) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To None of the Knowledge FAREISI Business consists of Target, during any United States real property interests within the last three years, no claim has been made by any taxing authority in meaning of Section 897 of the Code and none of the FAFCO Members is a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries has been a “United States real property holding corporation” company within the meaning of Section 897(c)(2) of the Code.
(vi) There are no tax sharing, at allocation, indemnification or similar agreements in effect under which the FAREISI Business could be liable for any time during the five-year period ending on the Closing DateTaxes or other claims of any party.
(vii) Neither Target nor any None of its Subsidiaries is party the FAFCO Members has applied for, been granted, or agreed to any Tax allocation accounting method change for which the FAREISI Business will be required to take into account any adjustment under Section 481 of the Code or sharing agreement and to any similar provision of the Knowledge Code or the corresponding tax laws of Targetany nation, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation state or sharing agreementlocality.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do FAREISI Business is not a party to any agreement that would require it to make any payment that would constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “an "excess parachute payment” (as such term is defined in Section " for purposes of Sections 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 4999 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Contribution and Joint Venture Agreement (First American Financial Corp), Contribution and Joint Venture Agreement (First American Financial Corp)
Other Tax Matters. (a) In the event that any Tax Authority shall (A) make any claim against any Purchaser Parties for any Taxes that are Excluded Liabilities of any Seller or (B) have in its favor a Lien on any of the Assets arising out of the non-payment of any Taxes that are Excluded Liabilities of a Seller (any Taxes described in (A) and (B) above hereby are referred to collectively as “Excluded Taxes”), such Purchaser Party shall be entitled to recover all Losses arising out of or in connection with such Excluded Taxes promptly (in accordance with the following provisions) by obtaining cash from the Succession Tax Escrow Amount in an amount equal to the aggregate amount of such Losses, provided that (i) Neither Target nor any of its Subsidiaries is currently the subject of an audit, judicial proceeding or other examination aggregate amount to be recovered under this Section 6.9 in respect of such Losses shall not exceed the Succession Tax Escrow Amount (plus any accrued interest on the Succession Tax Escrow Amount); and (ii) the only Losses recoverable under this Section 6.9 shall be the amount of Excluded Taxes claimed, and any additional Losses incurred by a Purchaser Party after the tax authorities earlier of any nationthe date on which a Tax Authority has made a claim described in (A) above or registered or imposed a Lien described in (B) above, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that could affect the Tax liability of Target or any of its Subsidiariesas applicable.
(iib) Neither Target nor If a claim for Losses under Section 6.9(a) (a “Tax Claim”) is to be made by a Purchaser Party, the Purchaser shall give written notice (a “Tax Claim Notice”) on behalf of such Purchaser Party to the Main Sellers promptly after such Purchaser Party becomes aware that a Tax Authority has made a claim against it for any Excluded Taxes or that such Taxes have given rise to a Lien described in clause (B) of its Subsidiaries has or will havesubsection (a) above, as applicable, stating, with reasonable specificity, the basis for the Tax Claim, and including a copy of all relevant documents received from the relevant Tax Authority. In the event that any Purchaser Party is entitled to recover the amount of any such Losses from the Succession Tax Escrow Amount, the Purchaser and the Main Sellers shall issue joint written instructions to the Escrow Agent authorizing distribution of the amount of such Losses to such Purchaser Party and such Purchaser Party shall be responsible for paying over to the relevant Tax Authority the amount of Excluded Taxes distributed to it from the Succession Tax Escrow Amount to the extent it has not already done so at the time of the distribution of such amount from such fund and shall provide Sellers with such written evidence as is reasonably requested in writing to confirm that payment to the relevant Tax Authority has been duly made.
(c) On the date that is the first Business Day after the first anniversary of the Closing Date, entered into an agreement or waiver or been requested in writing to enter into an agreement or waiver extending any statute of limitations relating the Purchaser and the Main Sellers shall deliver to the payment Escrow Agent joint written instructions to release to the Distribution Agent, on behalf of the Sellers and the EMEA Sellers, any remaining portion of the Succession Tax Escrow Amount (including any accrued interest thereon) in excess of an amount equal to the aggregate of all Tax Claims which have been asserted prior to such date evidenced by one or collection more Claim Notices and which remain pending and unresolved on such date. Thereafter, as soon as reasonably practicable after the final resolution of Taxes the last Tax Claim, the Purchaser and the Main Sellers shall issue joint written instructions to the Escrow Agent to release to the Distribution Agent, on behalf of Target or the Sellers and the EMEA Sellers, any remaining portion of its Subsidiaries that is currently in effectthe Succession Tax Escrow Amount (including any accrued interest thereon) after any distributions to Purchaser required hereby.
(iiid) Since August 1In the event that a Claim Notice is served, 2006the Purchaser shall take such steps as are commercially reasonable to mitigate or otherwise defend the assessment(s) made by the relevant Tax Authority. In the event that a payment from the Succession Tax Escrow Amount is made to a Purchaser Party pursuant to this Section 6.9, and subsequently a Purchaser Party becomes entitled to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been and receives a member of an affiliated group filing a consolidated, combined or unitary income Tax Return under United States federal, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.).
(iv) All material refund that is attributable to Excluded Taxes that Target and/or any of its Subsidiaries is were paid to such Purchaser Party from the Succession Tax Escrow Amount (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To the Knowledge of Target, during the last three years, no claim has been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries 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 Closing Date.
(vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 then the Purchaser shall, or shall cause the relevant Purchaser Party to, promptly pay to the Distribution Agent, on behalf of the CodeSellers and the EMEA Sellers, an amount equal to the portion of such refund so attributable (including any interest paid in connection with such portion), net of reasonable out-of-pocket expenses (including taxes) incurred by the Purchaser Party in obtaining such portion, unless (i) such refund is received prior to the first anniversary of the Closing Date or (ii) at the time the refund is received, the Succession Tax Escrow Amount is less than the sum of the Tax Claims that are evidenced by one or more Claim Notices and which remain pending and unresolved on such date, then, in each case, the Purchaser Party shall pay the net amount of such portion to the Escrow Agent to be added to the Succession Tax Escrow Amount.
(xiiie) Neither Target nor Notwithstanding anything to the contrary in this Agreement, recourse to the Succession Tax Escrow Amount under this Section 6.9 shall be the sole and exclusive remedy available to the Purchaser and any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction Designated Purchaser following the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and Closing in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject liability for Taxes that are Excluded Liabilities of a Seller or any liability for Taxes that give rise to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None Lien on any Assets in each case in the jurisdictions set forth on Section 6.9(e) of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estateSellers Disclosure Schedule.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Sale Agreement (Nortel Networks Corp), Asset Sale Agreement (Nortel Networks Corp)
Other Tax Matters. (i) Neither Target Except as set forth on Schedule 3.13(c)(i), in the last seven years neither the Company nor any of its Subsidiaries is currently has been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target the Company or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target the Company or any of its Subsidiaries.
(ii) Neither Target Except as set forth on Schedule 3.13(c)(ii), neither the Company nor any of its Subsidiaries has or will have(A) has, as of the Closing Date, entered into an 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 Target the Company and (B) is, as of the Closing Date, currently contesting the Tax liability of the Company or any of its Subsidiaries that is currently in effectbefore any court, tribunal or agency.
(iii) Since August 1, 2006, and to Neither the Knowledge of Target, since January 1, 2004, neither Target Company nor any of its Subsidiaries has been a member of an affiliated group filing a included in any "consolidated," "unitary" or "combined" Return, other than the consolidated, unified or combined Returns of the Company's Subsidiaries filed with other Subsidiaries of the Company and/or the Company, provided for under the laws of the United States, any foreign jurisdiction or unitary income Tax Return under United States federal, any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material Except as set forth on Schedule 3.13(c)(iv), all Taxes that Target and/or which either the Company or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To Neither the Knowledge Company nor any of Targetits Subsidiaries is a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(vi) Except as set forth on Schedule 3.13(c)(vi), during there are no tax sharing, allocation, indemnification or similar agreements in effect as between (A) the last three yearsCompany or any predecessor, Subsidiary or other affiliate thereof and (B) any other party under which FAFCO, the Company or any of the Company's Subsidiaries could be liable for any Taxes or other claims of any party.
(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) 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.
(ix) Except as set forth on Schedule 3.13(c)(ix), to the best knowledge, information and belief of the Company no claim has ever been made by any taxing authority in a jurisdiction where Target the Company does not file Returns that the Company or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is assets are or may be subject to taxation by that jurisdiction.
(vix) Neither Target nor any of its Subsidiaries has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) The liability of the Code, at any time during the five-year period ending on the Closing Date.
(vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target Company and its Subsidiaries have been established in for interest, penalties or fines as a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 result of the Code.
(xiii) Neither Target nor any untimely filing of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction all Returns and as the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 result of the Code.
(xiv) Each untimely payment of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax Taxes does not exceed $200,000 in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estateaggregate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (National Information Group), Merger Agreement (Speizer Mark)
Other Tax Matters. (i) Neither Target the Company nor any of its Subsidiaries is currently has been the subject of an audit, judicial proceeding any audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality (since 1998 and, to the Knowledge knowledge of Target, the Company and no such audit, judicial proceeding audit or other examination is contemplated) contemplated or pending, nor has Target the Company or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target the Company or any of its Subsidiaries.
(ii) Neither Target the Company nor any of its Subsidiaries has or will haveSubsidiaries, as of the Closing Date, (w) has entered into an 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 Target the Company or any of its Subsidiaries, (x) is presently contesting the Tax liability of the Company or any of its Subsidiaries that is currently in effectbefore 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.
(iii) Since August 1, 2006, and to No written claim has ever been made by any taxing authority in a jurisdiction where the Knowledge of Target, since January 1, 2004, neither Target nor Company or any of its Subsidiaries has been a member does not file Returns that the Company or any of an affiliated group filing a consolidatedits Subsidiaries is, combined or unitary income Tax Return under United States federalmay be, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.)subject to taxation by that jurisdiction.
(iv) All material Taxes that Target and/or which the Company or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder 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.
(v) To There are no tax sharing, allocation, indemnification or similar agreements or arrangements in effect as between the Knowledge Company, any Subsidiary, or any predecessor or Affiliate of Targetany of them and any other party under which Parent, during Sub, the last three years, no claim has been made by any taxing authority in a jurisdiction where Target Company or any of its Subsidiaries does not file Tax Returns that Target could be liable for any Taxes or other claims of any party.
(vi) 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 or may be subject otherwise nondeductible pursuant to taxation by that jurisdictionSection 163 of the Code.
(vivii) Neither Target 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.
(viii) Neither the Company nor any of its Subsidiaries has been a “"United States real property holding corporation” " within the meaning of Section 897(c)(2) of the Code, Code at any time during the five-five year period ending on the Closing Date.
(vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code)date hereof.
(ix) Correct and complete copies Except as provided in Schedule 4.12(c)(ix) of all adjustments the Company Disclosure Letter, there is no individual who is providing services to the tax items of, or deficiencies assessed against or agreed to by, Target Company or any of its Subsidiaries filed to which both clause (A) and clause (B) apply: (A) as of the date hereof, the individual is entitled to compensation under one or received since August 1more arrangements for which the Company or any Subsidiary would be entitled to an income tax deduction for all or a portion of the compensation paid to or for the benefit of such individual under U.S. Federal income tax in the absence of Code section 280G or Code section 162(m); and (B) the income tax deduction for payments described in clause (A) may be disallowed by reason of Code section 280G or Code section 162(m). Schedule 4.12(c)(ix) sets forth next to the name of each such individual, 2006 have been made available the amount (or a good faith estimate of such amount) of payment to Parenteach such individual that may be disallowed as an income tax deduction by reason of Code Section 280G or Code Section 162(m). Neither the Company nor any Subsidiary is subject to an obligation to provide a tax gross up payment to any individual by reason of the individual incurring excise tax liability under Code section 4999.
(x) There are no material security interests on any of Neither the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target Company nor any of its Subsidiaries has distributed stock of another Person, been included in any "consolidated," "unitary" or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed, in whole or in part, by Section 355 "combined" Return (other than Returns which include only the Company and any Subsidiaries of the Code.
(xiiiCompany) Neither Target nor provided for under the laws of any of its Subsidiaries has engaged in any “listed transaction,” jurisdiction or any reportable transaction state or locality with respect to Taxes, for any taxable period for which the principal purpose statute of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and limitations has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estateexpired.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Omega Worldwide Inc), Merger Agreement (Delta I Acquisition Inc)
Other Tax Matters. Except as set forth in SCHEDULE 3.9(c):
(i) Neither Target nor any of its the Company and the Subsidiaries is currently have not been the subject of a dispute or claim or an audit, judicial proceeding audit or other examination in respect of Taxes by the tax Tax authorities of any nationGovernmental Body, state nor have the Company or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries received any written notices from any taxing such Taxing authority in the past three years relating to any issue that which could affect have a Material Adverse Effect. SCHEDULE 3.9(c) also includes a list of all Tax examination reports and statements of deficiencies assessed against or agreed to by the Tax liability Company and/or the Subsidiaries since January 1, 1998, each of Target or any of its Subsidiarieswhich has been provided to the Purchaser.
(ii) Neither Target nor any of its the Shareholder, the Company and the Subsidiaries has or will have, as of the Closing Date, have not (A) entered into an 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 Target the Company or the Subsidiaries, or (B) is presently contesting the Tax Liability of the Company or the Subsidiaries before any of its Subsidiaries that is currently in effectGovernmental Body.
(iii) Since August 1, 2006, the Company and to the Knowledge of Target, since January 1, 2004, neither Target nor Subsidiaries have not been included in any of its Subsidiaries has been a member of an affiliated group filing a "consolidated, combined ," "unitary" or unitary income "combined" Tax Return provided for under United States federal, state or local law (other than an affiliated group, Applicable Law with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material all Taxes that Target and/or any of its which the Company or the Subsidiaries is are (or washave been) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To neither the Knowledge Company nor either of Target, during the last three years, no claim has been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries has been a “"United States real property holding corporation” " within the meaning of Section 897(c)(2) of the Code.
(vi) there are no Tax sharing, at allocation, indemnification or similar agreements in effect as between the Company and/or the Subsidiaries or any time during predecessor or Affiliate thereof and any other party (including the five-year period ending on Shareholder and any predecessors or Affiliates thereof) under which the Closing DatePurchaser, the Company or either of the Subsidiaries could be liable for any Taxes or other claims of any Person.
(vii) Neither Target nor any none of its the Company or the Subsidiaries is party have 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 allocation laws of any nation, state or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreementlocality.
(viii) The execution of this Agreement and the consummation no election under Section 341(f) of the transactions contemplated hereby do not constitute Code has been made or shall be made prior to the Closing Date to treat the Company or the Subsidiaries as a triggering event under any Employee Benefit Planconsenting corporation, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 341 of the Code.
(xiiiix) Neither Target neither the Company nor the Subsidiaries are, individually or collectively, a party to any agreement that would require any of its Subsidiaries has engaged in them to make any “listed transaction,” or any reportable transaction the principal purpose payment that would constitute an "excess parachute payment" for purposes of which was tax avoidance, within the meaning of Section 6011, Section 6111 Sections 280G and Section 6112 4999 of the Code.
(xivx) Each of the Subsidiaries that is a United Kingdom resident there are no requests for tax purposes is duly registered for value added tax in the United Kingdom, and rulings in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders Taxes pending between the Company or the Subsidiaries and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Allete Inc), Stock Purchase Agreement (Allete Inc)
Other Tax Matters. Except as set forth on Schedule 3.13(c):
(i) Neither Target (A) neither the Company nor any of its Subsidiaries is currently has been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality locality; (andB) no such audit is pending or, Table of Contents to the Knowledge of TargetCompany’s knowledge, no such audit, judicial proceeding or other examination is contemplated; and (C) neither the Company nor has Target or any of its Subsidiaries has received any written notices from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target the Company or any of its Subsidiaries.;
(ii) Neither Target neither the Company nor any of its Subsidiaries has or will have(A) has, as of the Closing Date, entered into an 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 Target the Company and (B) is, as of the Closing Date, currently contesting the Tax liability of the Company or any of its Subsidiaries that is currently in effect.before any court, tribunal or agency;
(iii) Since August 1, 2006, and to neither the Knowledge of Target, since January 1, 2004, neither Target Company nor any of its Subsidiaries has been a member of an affiliated group filing a included in any “consolidated,” “unitary” or “combined” Return, other than the consolidated, unified or combined Returns of the Company’s Subsidiaries filed with other Subsidiaries of the Company and/or the Company, provided for under the laws of the United States, any foreign jurisdiction or unitary income Tax Return under United States federal, any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.).limitations has not expired;
(iv) All material all Taxes that Target and/or which either the Company or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.;
(v) To neither the Knowledge of Target, during the last three years, no claim has been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target Company nor any of its Subsidiaries has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code, Code at any time during the five-year period ending on the Closing Date.date hereof;
(vi) there are no 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 under which Parent, FACO, 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) Neither Target 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) 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;
(ix) no claim has ever been made by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction;
(x) neither the Company nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and agreement that would require the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target Company or any of its Subsidiaries filed or received since August 1, 2006 have been made available any affiliate thereof to Parent.
(x) There are no material security interests on make any payment that would constitute an “excess parachute payment” for purposes of Sections 280G and 4999 of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.Code;
(xi) The reserves set forth on (A) there are no deferred intercompany transactions between the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target Company and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 of the Code.
(xiii) Neither Target nor any of between its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, and there is no excess loss account (within the meaning of Treasury Regulations Section 6011, Section 6111 and Section 6112 1.1502-19 with respect to the stock of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge Company or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation Subsidiaries) which will or warranty regarding may result in the Tax treatment and consequences recognition of income upon the consummation of the transactions 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 transactions contemplated by this Agreement will result in the Company and/or its Subsidiaries recognizing income; and
(xii) no indebtedness of the Company or any of its Subsidiaries consists of “corporate acquisition indebtedness” within the meaning of Section 279 of the Code. Table of Contents
Appears in 1 contract
Other Tax Matters. Except as set forth in Section 3.11(c) of the Company Disclosure Letter:
(i) Neither Target neither the Company nor any of its Significant Subsidiaries is currently the subject of an audit, judicial proceeding audit or other examination in respect (or has, to the Knowledge of the Company, received written notice of any threatened audit or examination) of Taxes by the tax authorities of any nation, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target the Company or any of its Significant Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that which could materially affect the Tax liability of Target such Company or any of its Significant Subsidiaries.;
(ii) Neither Target neither the Company nor any of its Significant Subsidiaries has or will have, as of the Closing Date, (A) entered into an agreement or waiver or been requested in writing to enter into an a written agreement or waiver extending any statute of limitations relating to the payment or collection of a material amount of Taxes of Target the Company or any of its Significant Subsidiaries that has not expired or (B) is currently in effect.presently contesting the material Tax liability of the Company or any of its Significant Subsidiaries before any court, tribunal or agency;
(iii) Since August 1, 2006, and to all material Taxes that the Knowledge of Target, since January 1, 2004, neither Target nor Company or any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary income Tax Return under United States federal, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.).
(iv) All material Taxes that Target and/or any of its Significant Subsidiaries is (or was) required by law Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party Third Party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable.;
(viv) To the Knowledge of Target, during the last three years, no claim Company has been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries has been a “"United States real property holding corporation” " within the meaning of Section 897(c)(2) of the Code, at any time Code during the five-year applicable period ending on specified in Section 897(c)(1)(A) of the Closing Date.Code;
(viiv) Neither Target neither the Company nor any of its Significant Subsidiaries is party has taken any reporting position on a Tax Return, which reporting position (a) 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 state, local or foreign Tax allocation law), and (b) has not adequately been disclosed on such Tax Return in accordance with Section 6662(d)(2)(B) of the Code (or sharing agreement and to similar provision of state, local or foreign Tax law); and
(vi) neither the Knowledge of Target, since January 1, 2004, neither Target Company nor any of its Significant Subsidiaries nor has any predecessor thereof was a party to liability for Taxes of any Tax allocation or sharing agreement.
person (viii) The execution of this Agreement and the consummation other than members of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidanceaffiliated group, within the meaning of Section 6011, Section 6111 and Section 6112 1504(a) of the Code.
, filing consolidated federal income Tax Returns of which the Company is the common parent) under Treasury Regulation ss. 1.1502-6 (xivor similar provision of state, local or foreign law) Each of the Subsidiaries that is as a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdomtransferee or successor, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 contract or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. (i) Neither Target nor any Schedule 2.11 attached hereto sets forth (A) each taxable year or other taxable period of its Subsidiaries is currently the subject of Transaction Parties for which an audit, judicial proceeding audit or other examination in respect of Taxes by the appropriate tax authorities of any nation, state or locality is currently in progress (andor scheduled as of the Initial Closing Date to be conducted) together with the names of the respective tax authorities conducting (or scheduled to conduct) such audit or examination and a description of the subject matter of such audit or examination, to (B) the Knowledge of Target, no such audit, judicial proceeding most recent taxable year or other taxable period for which an audit or other examination is contemplatedrelating to Federal income taxes of any Transaction Party has been finally completed and the disposition of such audit or examination, (C) nor has Target the taxable years or other taxable periods of any Transaction Party which will not be subject to the normally applicable statute of its Subsidiaries limitations by reason of any waiver or extension of the applicable statute of limitations for Taxes entered into or granted by or on behalf of such Transaction Party, (D) the amount of any proposed adjustments (and the principal reason therefor) relating to any Returns for Tax liability of any Transaction Party which have been proposed or assessed by any taxing authority and (E) a list of all notices received by any written notices Transaction Party from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target or any of its SubsidiariesTransaction Party, which issue has not been finally determined and which, if determined adversely to such Transaction Party, could result in a Tax liability.
(ii) Neither Target nor Except as set forth on Schedule 2.11, no Transaction Party has been included in any of its Subsidiaries has "consolidated," "unitary" or will have, as "combined" Return provided for under the law of the Closing DateUnited States, entered into an agreement any foreign jurisdiction or waiver any state or been requested in writing locality with respect to enter into an agreement or waiver extending Taxes for any taxable period for which the statute of limitations relating to the payment or collection of Taxes of Target or any of its Subsidiaries that is currently in effecthas not expired.
(iii) Since August 1, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target nor All Taxes which any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary income Tax Return under United States federal, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.).
(iv) All material Taxes that Target and/or any of its Subsidiaries Transaction Party is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(viv) To None of the Knowledge of Target, during the last three years, no claim has been made by any taxing authority in Transaction Parties is a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries has been a “"United States real property holding corporation” " within the meaning of Section 897(c)(2) of the Code.
(v) There are no tax sharing, at allocation, indemnification or similar agreements or arrangements in effect as between any time during Transaction Party or any predecessor or affiliate thereof and any other party under which the five-year period ending on 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 Closing DateCode or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(vii) Neither Target nor No indebtedness of any Transaction Party consists of its Subsidiaries is party to any Tax allocation or sharing agreement and to "corporate acquisition indebtedness" within the Knowledge meaning of Target, since January 1, 2004, neither Target nor any Section 279 of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreementthe Code.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do Transaction Parties are not a party to any agreement that would require them to make any payment that would constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “an "excess parachute payment” (as such term is defined in Section " for purposes of Sections 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 4999 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. (i) Neither Target Except as set forth on Section 3.6(c) of the Disclosure Schedule, (A) neither the Company nor any of its Subsidiaries is currently has been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality locality; (andB) no such audit is pending or, to the Knowledge of TargetCompany's knowledge, no such audit, judicial proceeding or other examination is contemplated; and (C) neither the Company nor has Target or any of its Subsidiaries has received any written notices from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target the Company or any of its Subsidiaries.;
(ii) Neither Target neither the Company nor any of its Subsidiaries has or will have(A) has, as of the Closing Date, entered into an 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 Target the Company and (B) is, as of the Closing Date, currently contesting the Tax liability of the Company or any of its Subsidiaries that is currently in effect.before any court, tribunal or agency;
(iii) Since August 1, 2006, and to neither the Knowledge of Target, since January 1, 2004, neither Target Company nor any of its Subsidiaries has been a member of an affiliated group filing a included in any "consolidated," "unitary" or "combined" Return, other than the consolidated, unified or combined returns of the Company's Subsidiaries filed with other Subsidiaries of the Company and/or the Company, provided for under the laws of the United States, any foreign jurisdiction or unitary income Tax Return under United States federal, any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.).limitations has not expired;
(iv) All material all Taxes that Target and/or which either the Company or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.;
(v) To neither the Knowledge Company nor any of Target, its Subsidiaries 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 last three yearsfive-year period ending on the date hereof;
(vi) there are no 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 under which Purchaser, the Company, any Subsidiary or any of their respective Affiliates (before and after giving effect to the Merger) could be liable for any Taxes or other claims of any party;
(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) 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;
(ix) no claim has ever been made by any taxing authority in a jurisdiction where Target the Company or any of its Subsidiaries does not file Tax Returns returns that Target the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.;
(vix) Neither Target nor any of its Subsidiaries has been a “United States real property holding corporation” within neither the meaning of Section 897(c)(2) of the Code, at any time during the five-year period ending on the Closing Date.
(vii) Neither Target Company nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and agreement that would require the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target Company or any of its Subsidiaries filed or received since August 1, 2006 have been made available any affiliate thereof to Parent.
(x) There are no material security interests on make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and 4999 of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.Code;
(xi) The reserves set forth on (A) there are no deferred intercompany transactions between the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target Company and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 of the Code.
(xiii) Neither Target nor any of between its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, and there is no excess loss account (within the meaning of Treasury Regulations Section 6011, Section 6111 and Section 6112 1.1502-19 with respect to the stock of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge Company or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation Subsidiaries) which will or warranty regarding may result in the Tax treatment and consequences recognition of income upon the consummation of the transactions 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 transactions contemplated by this Agreement will result in the Company and/or its Subsidiaries recognizing income; and
(xii) no indebtedness of the Company or any of its Subsidiaries consists of "corporate acquisition indebtedness" within the meaning of Section 279 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Accufacts Pre Employment Screening Inc)
Other Tax Matters. (i) Neither Target nor any Except for an audit by the Florida Department of its Subsidiaries is currently the subject of an auditRevenue with respect to sales tax and intangibles tax, judicial proceeding there are no audits, suits, investigations or inquiries (threatened or pending) or other examination in respect of Taxes by the appropriate tax authorities of any nation, state or locality (and, currently in progress with respect to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that could affect the Tax liability of Target or any of its SubsidiariesCompany.
(ii) Neither Target the Stockholders nor any of its Subsidiaries has or will the Company have, as of the Closing Datedate hereof, (A) entered into an agreement or waiver or been requested in writing to enter into an agreement or waiver extending any statute of limitations relating to the filing of any Return or the payment or collection of Taxes of Target the Company, (B) applied for and not yet received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company, or (C) is presently contesting the Tax liability of the Company before any of its Subsidiaries that is currently in effectcourt, tribunal or agency.
(iii) The Company has not been included in or joined in the filing of any "consolidated" or "combined" Return provided for under the law of the United States, any state or locality with respect to Taxes for any taxable period.
(iv) Since August 1the last filing date of each applicable Return, 2006, and to the Knowledge there has not been any change in any method of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined reporting income or unitary income Tax Return under United States expenses for federal, state or local law (other than an affiliated group, Tax purposes followed by the common parent of which was Target or Mobile Services Group Inc.)Company.
(ivv) The Company has not filed a consent with the Internal Revenue Service pursuant to Section 341(f) of the Code and has not agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341 (f) of the Code) owned by the Company.
(vi) All material Taxes that Target and/or any relating to the income, properties or operations of its Subsidiaries the Company which the Company is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(vvii) To There are no tax sharing or allocation agreements in effect on the Knowledge of Target, during Closing Date as between the last three years, no claim has been made by any taxing authority in a jurisdiction where Target Stockholders or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject the Company with respect to taxation by that jurisdictionTaxes.
(viviii) Neither Target nor any of its Subsidiaries has been a “United States real No property holding corporation” shown as an Asset on the Books and Records is "tax-exempt use property" within the meaning of Section 897(c)(2168(h) of the Code, at any time during the five-year period ending on the Closing Date.
(vii) Neither Target Code nor any of its Subsidiaries is party property that Bentley will be required to any Tax allocation or sharing agreement and treat as being owned by another person pursuant to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation Section 168 of the transactions contemplated hereby do not constitute a triggering event under Code (or any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence corresponding provision of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Codeprior law).
(ix) Correct and complete copies No Stockholder is a "foreign person" within the meaning of all adjustments to Section 1445 of the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to ParentCode.
(x) There are no material security interests on The Company is not a party to any agreement that would require the Company to make any payment that would constitute an "excess parachute payment" for purposes of Sections 280G and 4999 of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any TaxesCode.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target Company is not now and its Subsidiaries have has never been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged partner in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, partnership and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result participated in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreementjoint venture.
Appears in 1 contract
Other Tax Matters. (i) Neither Target nor any No audit of its Subsidiaries is currently the subject of an audit, judicial proceeding Company or other examination in respect of Taxes by the appropriate tax authorities of any nation, state or locality is currently in progress (andor scheduled as of the Closing Date to be conducted), to or has ever been requested or performed.
(ii) No notices have been received by the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries received any written notices Company from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target or any the Company within the seven (7) year period prior to the execution of its Subsidiariesthis Agreement.
(iiiii) Neither Target the Stockholder nor any of its Subsidiaries has or will havethe Company has, as of the date hereof or the Closing Date, (A) entered into an 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 Target the Company, (B) applied for and has not yet received a ruling or determination from a taxing authority regarding a past or prospective transaction of the Company, or (C) is presently contesting the Tax liability of the Company before any of its Subsidiaries that is currently in effect.
(iii) Since August 1court, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined tribunal or unitary income Tax Return under United States federal, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.)agency.
(iv) The Company is not required to be included in any "consolidated" or "combined" tax return under the law of the United States, any state or locality with respect to Taxes.
(v) 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 the Code.
(vi) All material Taxes that Target and/or any relating to the income, properties or operations of its Subsidiaries the Company which the Company is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(vvii) To There are no tax sharing or allocation agreements in effect on the Knowledge of Target, during Closing Date as between the last three years, no claim has been made by any taxing authority in a jurisdiction where Target Stockholder or any of its Subsidiaries does not file Tax Returns that Target predecessor or any of its Subsidiaries is or may be subject affiliate thereof and the Company with respect to taxation by that jurisdictionTaxes.
(viviii) Neither Target nor any Since the incorporation of its Subsidiaries the Company and the initial issuance of the Company's shares to Stockholder, there has not been a “United States real property holding corporation” an "ownership change" within the meaning of Section 897(c)(2382(g) of the Code, at any time during Code involving the five-year period ending on the Closing Date.
(vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code)Company.
(ix) Correct and complete copies No property of all adjustments the Company is "tax-exempt use property" within the meaning of Section 168(h) of the Code nor property that the Purchaser will be required to treat as being owned by another person pursuant to Section 168 of the tax items of, or deficiencies assessed against or agreed to by, Target Code (or any corresponding provision of its Subsidiaries filed or received since August 1, 2006 have been made available to Parentprior law).
(x) There are no material security interests on any The Stockholder is not a "foreign person" within the meaning of Section 1445 of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any TaxesCode.
(xi) The reserves set forth on Company is not a party to any agreement that would require the balance sheet Company to make any payment that would constitute an "excess parachute payment" for purposes of Target as at the Balance Sheet Date for unpaid Taxes of Target Sections 280G and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 4999 of the Code.
(xiiixii) Neither Target nor any of its Subsidiaries The Company is a valid subchapter S corporation and has engaged filed all required state and federal documentation to make and maintain such election and further has acted and will act in any “listed transaction,” or any reportable transaction accordance with all rules and regulations governing such election at all times up to the principal purpose of which was tax avoidanceClosing, within although the meaning of Section 6011, Section 6111 parties acknowledge and Section 6112 of agree that the CodeCompany's election will end upon the Closing.
(xivxiii) Each The Company will not be liable for any Tax under Code Section 1374 in connection with the deemed sale of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in Company's assets (including the United Kingdom, and in respect assets of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within qualified subchapter S subsidiary) caused by the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.338(h)
Appears in 1 contract
Samples: Stock Purchase Agreement (Mikron Instrument Co Inc)
Other Tax Matters. (i) (A) Neither Target nor any of its Subsidiaries is currently Seller has been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes related to the Purchased Assets by the tax authorities of any nation, state or locality locality; (andB) no such audit is pending or, to the Knowledge of TargetMSC, no such audit, judicial proceeding or other examination is contemplated; and (C) nor neither Seller has Target or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that could reasonably be expected to affect the Tax liability of Target or any of its Subsidiarieseither Seller related to the Purchased Assets.
(ii) Neither Target nor any None of its Subsidiaries has or will haveMSC, PPS and PFM, as of the Closing Date, (A) has entered into an 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 Target either Seller related to the Purchased Assets, (B) is presently contesting the Tax liability of either Seller related to the Purchased Assets before any court, tribunal or agency, (C) has granted a power-of-attorney relating to Tax matters related to the Purchased Assets 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 its Subsidiaries that is currently in effecteither Seller related to the Purchased Assets.
(iii) Since August 1, 2006, and All Taxes related to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary income Tax Return under United States federal, state or local law (other than an affiliated group, the common parent of which was Target or Mobile Services Group Inc.).
(iv) All material Taxes Purchased Assets that Target and/or any of its Subsidiaries each Seller is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(viv) To the Knowledge of Target, during the last three years, no No claim has ever been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does the Sellers do not file Tax Returns that Target or any of its Subsidiaries either Seller is or may be subject to taxation by that jurisdictionjurisdiction with respect to the Purchased Assets.
(v) There are no tax sharing, allocation, indemnification or similar agreements in effect as between the Sellers or any predecessor or Affiliate thereof and any other party (including MSC and any predecessors or Affiliates thereof) under which the Buyer or any Affiliate of the Buyer could be liable for any Taxes or other claims of any Person.
(vi) Neither Target nor any Each Seller has delivered or made available to the Buyer copies of its Subsidiaries has been each of the Tax Returns for income Taxes filed on behalf of such Seller since 1997.
(vii) None of MSC, PPS and PFM is a “United States real property holding corporation” "foreign person" within the meaning of Section 897(c)(2) 1445 of the Code, at any time during the five-year period ending on the Closing Date.
(vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material liens or security interests on any of the assets of the Target or any Subsidiary Purchased Assets that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xiix) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United KingdomImmediately prior to, and in respect of any value added tax each has complied with all statutory provisionsimmediately subsequent to, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in sale of the United Kingdom for tax purposes whether Purchased Assets pursuant to Section 179 Taxation the provisions of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement, each Seller will have the financial wherewithal to discharge its debts and obligations as they become due.
Appears in 1 contract
Other Tax Matters. (i) Neither Target The Company is not currently nor any of its Subsidiaries is currently has been within the past five (5) years the subject of an audit, judicial proceeding audit or other examination in respect of relating to Taxes by the tax taxing authorities of any nation, state or locality (and, to the Knowledge of Target, and no such audit, judicial proceeding audit is pending or other examination is contemplated) nor has Target or any of its Subsidiaries the Company received any written notices within the past five (5) years from any taxing authority in the past three years that such an audit or examination is pending or relating to any issue that could which might affect the Tax liability of Target or any of its Subsidiariesthe Company.
(ii) Neither Target nor any of its Subsidiaries The Company (A) has or will have, as of the Closing Date, not entered into an agreement or waiver or been requested in writing to enter into an a written agreement or waiver extending any statute of limitations relating to the payment or collection of Taxes of Target the Company that has not expired or (B) is not presently contesting the Tax liability of the Company before any of its Subsidiaries that is currently in effecttaxing authority or other Governmental Entity.
(iii) Since August 1The Company has not been included in any “consolidated”, 2006“unitary” or “combined” Return provided for under the Law of the United States, and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined non-U.S. jurisdiction or unitary income Tax Return under United States federal, any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material Taxes that Target and/or any of its Subsidiaries the Company is (or was) required by law Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder 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.
(v) To the Knowledge of Target, during the last three years, no No written claim has ever been made by any taxing Taxing authority in a jurisdiction where Target or any of its Subsidiaries the Company does not file Tax Returns that Target or any of its Subsidiaries the Company is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries The Company is not, and has been not been, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code, Code at any time during the five-year period ending on the Closing Date.
(vii) Neither Target nor 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 (including Seller and any of its Subsidiaries is party to predecessors or Affiliates) under which Purchaser or the Company could be liable for any Tax allocation Taxes or sharing agreement and to the Knowledge other claims of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreementparty.
(viii) The execution Seller has delivered or made available to Purchaser true and complete copies, including all amendments thereto, of this Agreement and the consummation each of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G Returns for income Taxes filed on behalf of the Code)Company since December 31, 2017.
(ix) Correct and complete copies The Company will not be required to include any material item of all adjustments 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 tax items of, or deficiencies assessed against or agreed to by, Target Closing Date: (A) a “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of its Subsidiaries filed state, local or received since August 1non-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 Section 1.1502-19; (E) a change in the accounting method of the Company pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding Tax Laws of any nation, 2006 have been made available state or locality; or (F) any income earned or accumulated earnings and profits that would result in an inclusion under Section 951(a), Section 951A or Section 965 of the Code (or any similar provision of the Code or the corresponding tax laws of any nation, state or locality) attributable to Parentany the Company for the Pre-Closing Period.
(x) There are no material security interests on any of During the assets of the Target or any Subsidiary that arose in connection with any failure five (or alleged failure5) to pay any Taxes.
(xi) The reserves set forth year period ending on the balance sheet date of Target as at this Agreement, the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in Company was not a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its Subsidiaries has distributed stock of another Person, distributing corporation or has had its stock distributed by another Person, a controlled corporation in a transaction that was purported or intended to be governed, in whole or in part, governed by Section 355 of the Code.
(xiiixi) Neither Target nor any of its Subsidiaries The Company has not engaged in any a “listed reportable transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Treasury Regulations Section 6011, Section 6111 and Section 6112 of the Code1.6011-4(b).
(xivxii) Each of the Subsidiaries that is The Company properly filed an election to be treated as a United Kingdom resident corporation for U.S. federal income tax purposes is duly registered for value added tax by filing an IRS Form 8832 on September 2, 2022, which resulted in the United KingdomCompany being properly classified as a corporation for U.S. federal income tax purposes effective as of July 1, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, 2022.
(xiii) Seller is and has not within been since the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by date of its formation an entity properly classified as a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group corporation for value added U.S. federal income tax purposes and none has never filed or otherwise made any an election to waive the exemption from value added tax in relation be treated as other than a corporation for such purposes (including but not limited to any interest in real estatean election on IRS Form 8832).
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. (i) Neither Target Except as set forth on Schedule 3.14(c)(i), neither Optiant nor any of its Subsidiaries is currently has been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state state, or locality (andand no such audit is pending or, to the Knowledge of TargetOptiant’s knowledge, no such auditcontemplated), judicial proceeding or other examination is contemplated) nor has Target Optiant or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that could reasonably be expected to adversely affect the Tax liability of Target Optiant or any of its Subsidiaries.
(ii) Neither Target Except as set forth on Schedule 3.14(c)(ii), neither Optiant nor any of its Subsidiaries has or will haveSubsidiaries, as of the Closing Date, (A) has entered into an 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 Target Optiant or any of its Subsidiaries, (B) is presently contesting the Tax liability of Optiant or any of its Subsidiaries that is currently in effectbefore any court, tribunal or agency, (C) has granted a power-of-attorney relating to Tax matters to any person or (D) has applied for or received a ruling or determination from a taxing authority regarding a past or prospective transaction of Optiant.
(iii) Since August 1, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target Neither Optiant nor any of its Subsidiaries has been a member of an affiliated group filing a included in any “consolidated, combined ,” “unitary” or unitary income “combined” Tax Return provided for under the law of the United States federalStates, any non-U.S. jurisdiction or any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material Except as set forth on Schedule 3.14(c)(iv), all Taxes that Target and/or Optiant or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder 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.
(v) To the Knowledge of Target, during the last three years, no No written claim has ever been made by any taxing authority in a jurisdiction where Target Optiant or any of its Subsidiaries does not file Tax Returns that Target Optiant or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) There are no tax sharing, allocation, indemnification, or similar agreements in effect as between Optiant or any predecessor thereof and any other party (including Optiant and any predecessors or Related Persons thereof) under which NEWCO or Optiant could be liable for any Taxes or other claims of any party.
(vii) Neither Target Optiant 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) No election under Section 341(f) of the Code has been made or shall be made prior to the Closing Date to treat Optiant or any of its Subsidiaries as a consenting corporation, as defined in Section 341 of the Code.
(ix) Neither Optiant nor any of its Subsidiaries is a party to any agreement that would require it to make any payment that would constitute an “United States real property holding corporationexcess parachute payment” for purposes of Sections 280G and 4999 of the Code.
(x) No indebtedness of Optiant consists of “corporate acquisition indebtedness” within the meaning of Section 897(c)(2) 279 of the Code, at any time during the five-year period ending on the Closing Date.
(viixi) Neither Target nor any Optiant is not a “foreign person” within the meaning of its Subsidiaries is party to any Tax allocation or sharing agreement and to Section 1445 of the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreementCode.
(viiixii) The execution Optiant has not been a member of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” an affiliated group (as such term is defined in Section 280G 1504 of the Code).
(ixxiii) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target Optiant and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident no liability for tax purposes is duly registered for value added tax in the United Kingdom, and in respect Taxes of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge Person other than Optiant or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estateits Subsidiaries.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. Except as set forth in Schedule 3.8(c):
(i) Neither Target nor any of its Subsidiaries is currently Company has not been the subject of a dispute or claim or an audit, judicial proceeding audit or other examination in respect of Taxes by the tax Tax authorities of any nationGovernmental Body, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries Company received any written notices from any such taxing authority in the past three years relating to any issue that could affect the Tax liability of Target or any of its Subsidiariesauthority.
(ii) Neither Target nor any of its Subsidiaries has or will have, as of the Closing Date, Seller and Company have not (A) entered into an 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 Target Company, or (B) contested the Tax Liability of Company before any of its Subsidiaries that is currently in effectGovernmental Body.
(iii) Since August 1, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target nor Company has not been included in any of its Subsidiaries has been a member of an affiliated group filing a “consolidated, combined ,” “unitary” or unitary income “combined” Tax Return provided for under United States federal, state or local law (other than an affiliated group, Applicable Law with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material all Taxes that Target and/or any of its Subsidiaries which Company is (or washas been) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To the Knowledge of Targetthere are no Tax sharing, during the last three yearsallocation, no claim has been made by any taxing authority indemnification or similar agreements in a jurisdiction where Target effect as between Company or any predecessor thereof and any other party (including Seller and any predecessors) under which Purchaser or Company could be liable for any Taxes or other claims of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdictionPerson.
(vi) Neither Target nor any of its Subsidiaries Company is and has been a “United States real property holding corporation” validly electing S Corporation within the meaning of Section 897(c)(2) of the CodeCode §§1361 and 1362 at all times since October 1, at any time during the five-year period ending on the Closing Date1989.
(vii) Neither Target nor any of its Subsidiaries is party to Company will not be liable for any Tax allocation under Code §1374 in connection with the deemed sale of Company’s assets caused by the Code §338(h)(10) Election. Within the past ten (10) years, Company has not (A) acquired assets from another corporation in a transaction in which Company’s tax basis for the acquired assets was determined, in whole or sharing agreement and in part, by reference to the Knowledge Tax basis of Target, since January 1, 2004, neither Target nor the acquired assets (or any other property) in the hands of its Subsidiaries nor the transferor or (B) acquired the stock of any predecessor thereof corporation that is or was a party to any Tax allocation or sharing agreementqualified subchapter S subsidiary.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under there is no action, suit, taxing authority proceeding, audit or investigation now in progress, pending or, to Seller’s Knowledge, Threatened against or with respect to Company with respect to any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code)Tax.
(ix) Correct and complete copies of all adjustments Company does not reasonably expect any taxing authority to claim or assess any additional Tax against them for any period ending on or prior to the tax items ofClosing Date, and to Seller’s Knowledge, there is no basis for any such claim or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parentassessment.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its Subsidiaries Company has not distributed stock of another Person, or has nor had its stock distributed by another Person, in a transaction that was purported or was intended to be governed, governed in whole or in part, part by IRC Section 355 of the Codeor Section 361.
(xiiixi) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and Company has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of an affiliated or similar group filing a group consolidated, combined, unitary or similar income tax return or has any liability for value added tax purposes and none has made the Taxes of any election to waive the exemption from value added tax in relation to Person under Treas. Reg. §1.1502-6 (or any interest in real estate.
(xv) Neither the execution and delivery similar provision of this Agreement state, local or foreign law), as a transferee or successor, by Target nor the consummation of the Merger will result in any incomeagreement, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. (i) Neither Target Except as set forth on Schedule 3.13(c)(i), neither the -------------------- Company nor any of its Subsidiaries is currently the subject has received notice of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target the Company or any of its Subsidiaries received any written notices from any taxing authority in the past three years relating to any issue that which could affect the Tax liability of Target the Company or any of its Subsidiaries.
(ii) Neither Target Except as set forth on Schedule 3.13(c)(ii), neither the -------------------- Company nor any of its Subsidiaries has or will have(A) has, as of the Closing Date, entered into an 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 Target the Company and (B) is, as of the Closing Date, currently contesting the Tax liability of the Company or any of its Subsidiaries that is currently in effectbefore any court, tribunal or agency.
(iii) Since August 1, 2006, and to Neither the Knowledge of Target, since January 1, 2004, neither Target Company nor any of its Subsidiaries has been a member of an affiliated group filing a included in any "consolidated," "unitary" or "combined" Return, other than the consolidated, unified or combined Returns of the Company's Subsidiaries filed with other Subsidiaries of the Company and/or the Company, provided for under the laws of the United States, any foreign jurisdiction or unitary income Tax Return under United States federal, any state or local law (other than an affiliated group, locality with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material Taxes that Target and/or which either the Company or any of its Subsidiaries is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To Neither the Knowledge Company nor any of Targetits Subsidiaries is a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(vi) There are no tax sharing, during allocation, indemnification or similar agreements in effect as between (A) the last three yearsCompany or any predecessor, no Subsidiary or other affiliate thereof and (B) any other party under which FACO, the Company or any of the Company's Subsidiaries could be liable for any Taxes or other claims of any party.
(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) 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.
(ix) No claim has ever been made by any taxing authority in a jurisdiction where Target the Company does not file Returns that the Company or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is assets are or may be subject to taxation by that jurisdiction.
(vix) Neither Target nor any of its Subsidiaries 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 Closing Date.
(vii) Neither Target nor any of its Subsidiaries The Company is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was not a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not agreement that would require it to make any payment that would constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “an "excess parachute payment” (as such term is defined in Section " for purposes of Sections 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 4999 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. Except as set forth on Schedule 3.9(c) :
(i) Neither Target nor any of its Subsidiaries is currently The Company has not been the subject of a dispute or claim or an audit, judicial proceeding audit or other examination in respect of Taxes by the tax Tax authorities of any nationGovernmental Body, state or locality (and, to the Knowledge of Target, no such audit, judicial proceeding or other examination is contemplated) nor has Target or any of its Subsidiaries the Company received any written notices from any taxing such Tax authority in the past three years relating to any issue that which could affect the Tax liability Liability of Target the Company. Schedule 3.9(c)(i) also includes a list of all Tax examination reports and statements of deficiencies assessed against or any agreed to by the Company since January 1, 1995, each of its Subsidiarieswhich has been provided to IRET.
(ii) Neither Target the Shareholders nor any predecessor stockholder of its Subsidiaries has the Company or will havethe Company has, as of the Closing DateEffective Time, (A) entered into an 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 Target the Company, or (B) is presently contesting the Tax Liability of the Company before any of its Subsidiaries that is currently in effectcourt, tribunal or agency.
(iii) Since August 1, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target nor The Company has not been included in any of its Subsidiaries has been a member of an affiliated group filing a "consolidated, combined ," "unitary" or unitary income "combined" Tax Return provided for under United States federal, state or local law (other than an affiliated group, Applicable Law with respect to Taxes for any taxable period for which the common parent statute of which was Target or Mobile Services Group Inc.)limitations has not expired.
(iv) All material Taxes that Target and/or any of its Subsidiaries which the Company is (or was) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.
(v) To the Knowledge of Target, during the last three years, no claim has been made by any taxing authority in The Company is not a jurisdiction where Target or any of its Subsidiaries does not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries has been a “"United States real property holding corporation” " within the meaning of Section 897(c)(2) of the Code.
(vi) There are no Tax sharing, at allocation, indemnification or similar agreements in effect as between the Company or any time during predecessor or Affiliate thereof and any other party (including the five-year period ending on Shareholders and any predecessors or Affiliates thereof) under which IRET, the Closing DateCompany or the Surviving Corporation could be liable for any Taxes or other claims of any Person.
(vii) Neither Target nor any of its Subsidiaries is party 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 allocation laws of any nation, state or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreementlocality.
(viii) The execution of this Agreement and the consummation No election under Section 341(f) of the transactions contemplated hereby do not constitute Code has been made or shall be made prior to the Effective Time to treat the Company as a triggering event under any Employee Benefit Planconsenting corporation, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any of the assets of the Target or any Subsidiary that arose in connection with any failure (or alleged failure) to pay any Taxes.
(xi) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.
(xii) Neither Target nor any of its 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 Section 355 341 of the Code.
(xiiiix) Neither Target nor 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 its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 Sections 280G and Section 6112 4999 of the Code.
(xivx) Each The Company, through its stockholders, has made a valid S election under Section 1361 of the Subsidiaries that is Code. Such election was made on June 26, 2001 and was effective as of the Tax year commencing May 1, 2001. 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 United Kingdom resident valid S corporation through the Effective Time.
(xi) Except for tax purposes is duly registered the Private Letter Ruling request made by the Company with respect to the Transactions contemplated by the Company and the Shareholders pursuant to and under this Agreement, a copy of which has been provided to IRET and the Merger Subsidiary, there are no requests for value added tax in the United Kingdom, and rulings in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders Taxes pending between the Company and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. (i) Neither Target nor any of its Subsidiaries is currently Except as set forth in Schedule 3.15(c)(i), the Company has not been the subject of an audit, judicial proceeding audit or other examination in respect of Taxes by the tax authorities of any nation, state or locality (and, and to the Knowledge of Target, Seller's knowledge no such audit, judicial proceeding audit is pending or other examination is contemplated) nor has Target or any of its Subsidiaries the Company received any written notices from any taxing authority in the past three years or other Person relating to any issue that which could affect the result in a material Tax liability of Target the Company. All deficiencies asserted or assessments made as a result of any of its Subsidiariessuch audit or examination have been fully paid or are fully reflected as a liability in the Unaudited Balance Sheet or are being contested in good faith and an adequate reserve therefore has been established in the Unaudited Balance Sheet.
(ii) Neither Target Except as set forth in Schedule 3.15(c)(ii), neither Seller nor any of its Subsidiaries the Company (A) has or will have, as of the Closing Date, entered into an 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 Target the Company, (B) is presently contesting the Tax liability of the Company 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 its Subsidiaries that is currently in effectthe Company.
(iii) Since August 1The Company has not been included in the "consolidated" Return of any Person, 2006, and to as provided for under the Knowledge law of Target, since January 1, 2004, neither Target nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary income Tax Return under the United States federal, and any applicable non-U.S. jurisdiction or any applicable state or locality. The Company does not have any liability for any other Person under Treasury Regulations Section 1.1502-6 (or any comparable Provision of state, local or foreign law (or other than an affiliated group, the common parent of which was Target law or Mobile Services Group Inc.by contract).
(iv) All material Taxes that Target and/or any of its Subsidiaries which the Company is (or was) required by law Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder 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.
(v) To the Knowledge of Target, during the last three years, no No written claim has ever been made by received from any taxing authority in a jurisdiction where Target or any of its Subsidiaries the Company does not file Tax Returns that Target or any of its Subsidiaries the Company is or may be by subject to taxation by that jurisdiction.
(vi) Neither Target nor There are no tax sharing, allocation, indemnification or similar agreements, arrangements or undertakings in effect, written or unwritten, as between the Company or any Affiliate thereof and any other party (including Seller and any predecessors or Affiliates thereof) under which Purchaser or the Company could be liable for any Taxes or other claims of its Subsidiaries any party.
(vii) 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.
(viii) No election under Section 341(f) of the Code has been made to treat the Company as a “United States real property holding consenting corporation” , as defined in Section 341 of the Code.
(ix) 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.
(x) No indebtedness of the Company consists of "corporate acquisition indebtedness" within the meaning of Section 897(c)(2) 279 of the Code, at any time during the five-year period ending on the Closing Date.
(viixi) Neither Target nor any Seller is not a "foreign person" within the meaning of its Subsidiaries is party to any Tax allocation or sharing agreement and to Section 1445 of the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreementCode.
(viiixii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.
(x) There are no material security interests on any None of the assets of the Target Company is property required to be treated as being owned by any other Person pursuant to the "safe harbor lease" provisions of former Section 168(f)(8) of the Code. None of the assets of the Company directly or indirectly secures any Subsidiary that arose in connection with any failure (or alleged failuredebt the interest on which is tax-exempt under Section 103(a) to pay any Taxesof the Code. None of the assets of the Company is "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(xixiii) The reserves set forth on the balance sheet of Target as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with Within the past practices of Target in all material respects.
three (xii3) Neither Target years neither the Company nor any of its Subsidiaries predecessors by merger or consolidation has distributed stock of another Person, or has had its stock distributed by another Person, in been a party to a transaction that was purported or intended to be governed, in whole qualify under Section 355 of the Code or in part, by under so much of Section 356 of the Code as relates to Section 355 of the Code.
(xiii) Neither Target nor any of its Subsidiaries has engaged in any “listed transaction,” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 of the Code.
(xiv) Each of the Subsidiaries The Company has not entered into any transaction that is a United Kingdom resident for "reportable transaction," as defined in Treasury Regulations Section 1.6011-4(b) or a "potentially abusive tax purposes is duly registered for value added tax shelter," as defined in the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and has not within the three years prior to the Closing Date been subject to any interest, forfeiture, surcharge or penalty charge by a Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estateTreasury Regulations Section 301.6112-1(b).
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
Appears in 1 contract
Other Tax Matters. Except as set forth in Schedule 3.9(c):
(i) Neither Target nor any of its Subsidiaries is currently the Company has not been the subject of an a dispute, claim, audit, judicial proceeding administrative Proceeding or other examination in respect of Taxes by the tax Tax authorities of any nationGovernmental Body, state nor has the Company received any notices from any such taxing authority relating to a Threatened or locality potential (and, whether written or otherwise to the Knowledge of Target, no such audit, judicial proceeding the Shareholder or other examination is contemplatedthe Company) nor has Target claim for Taxes or any Tax issue of its Subsidiaries received any written notices from any taxing authority in the past three years relating Company. Schedule 3.9(c) lists all Tax examination reports and statements of deficiencies assessed against or agreed to any issue that could affect by the Tax liability Company since January 1, 2002, each of Target or any of its Subsidiaries.which has been provided to the Purchaser;
(ii) Neither Target no deficiency for any Taxes has been proposed, asserted or assessed against the Company or any Tax Affiliate that has not been resolved and paid in full;
(iii) neither the Company nor any Tax Affiliate has requested any extension of its Subsidiaries has or will have, as of time within which to file any unfiled Tax Return;
(iv) neither the Closing Date, Shareholder nor the Company (A) have entered into an 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 Target the Company, or (B) is presently contesting the Tax Liability of the Company before any of its Subsidiaries that is currently in effect.Governmental Body;
(iiiv) Since August 1, 2006, and to the Knowledge of Target, since January 1, 2004, neither Target nor Company has not been included in any of its Subsidiaries has been a member of an affiliated group filing a “consolidated, combined ,” “unitary” or unitary income “combined” Tax Return provided for under United States federal, state or local law Applicable Laws with respect to Taxes for any taxable period for which the statute of limitations has not expired;
(vi) the Company has no liability for the Taxes of any Person (other than an affiliated groupthe Company) under Treasury Regulations Section 1.1502-6 (or any similar provision of law) or as a transferee or successor, the common parent of which was Target by contract or Mobile Services Group Inc.).otherwise;
(ivvii) All material Taxes that Target and/or no claim has ever been made in writing by a taxing authority or other Governmental Body in a jurisdiction where any of its Subsidiaries the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction;
(viii) all Taxes which the Company is (or washas been) required by law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, 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.authorities;
(vix) To the Knowledge of Target, during the last three years, no claim has been made by any taxing authority in a jurisdiction where Target or any of its Subsidiaries does Company is not file Tax Returns that Target or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(vi) Neither Target nor any of its Subsidiaries 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 Closing Date.
(vii) Neither Target nor any of its Subsidiaries is party to any Tax allocation or sharing agreement and to the Knowledge of Target, since January 1, 2004, neither Target nor any of its Subsidiaries nor any predecessor thereof was a party to any Tax allocation or sharing agreement.
(viii) The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Plan, policy, arrangement, statement, commitment or agreement, which (either alone or upon the occurrence of any additional or subsequent event) will result in any “parachute payment” (as such term is defined in Section 280G of the Code).
(ix) Correct and complete copies of all adjustments to the tax items of, or deficiencies assessed against or agreed to by, Target or any of its Subsidiaries filed or received since August 1, 2006 have been made available to Parent.;
(x) There there are no material security interests on any of Tax sharing, allocation, indemnification or similar agreements in effect between the assets of the Target Company or any Subsidiary that arose in connection with predecessor or Affiliate thereof and any failure other party (including the Shareholder and any predecessors or alleged failureAffiliates thereof) to pay under which the Purchaser or the Company could be liable for any Taxes.Taxes or other claims of any Person;
(xi) The reserves set forth on neither the balance sheet of Target Company nor any Tax Affiliate has participated in any listed transaction as at the Balance Sheet Date for unpaid Taxes of Target and its Subsidiaries have been established in a manner consistent with the past practices of Target in all material respects.defined under Code Section 6011;
(xii) Neither Target nor there are no Encumbrances for Taxes upon any of its 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 Section 355 assets of the Code.Company, except Encumbrances for Taxes not yet due;
(xiii) Neither Target nor any no property of its Subsidiaries has engaged the Company is property that the Company is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in any effect prior to amendment by the Tax Reform Act of 1986) or is “listed transaction,tax-exempt use property” or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Section 6011, Section 6111 and Section 6112 168(h) of the Code.;
(xiv) Each 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 Subsidiaries that is a United Kingdom resident for tax purposes is duly registered for value added tax in Code or any similar provision of the Code or the corresponding Tax laws of any nation, state or locality and the United Kingdom, and in respect of any value added tax each has complied with all statutory provisions, rules, regulations, orders and directions, has promptly submitted accurate returns, maintains full and accurate records, and States Internal Revenue Service (the “IRS”) has not within proposed any such adjustment or change in accounting method that would adversely affect a Tax year ending after the three years Closing Date;
(xv) no election under former Section 341(f) of the Code has been made or shall be made prior to the Closing Date been subject to treat the Company as a consenting corporation, as defined in former Section 341 of the Code;
(xvi) the Company is not a party to any interestagreement, forfeiture, surcharge contract or penalty charge by a other arrangement 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; and
(xvii) there are no requests for rulings in respect of any Taxes pending between the Company and any Tax authority. None of the United Kingdom resident Subsidiaries is a member of a group for value added tax purposes and none has made any election to waive the exemption from value added tax in relation to any interest in real estate.
(xv) Neither the execution and delivery of this Agreement by Target nor the consummation of the Merger will result in any income, profit or gain being deemed to accrue to any Subsidiary that is resident in the United Kingdom for tax purposes whether pursuant to Section 179 Taxation of Chargeable Gains Tax Axx 0000, Section 82 and Schedule 10 Finance Axx 0000 or otherwise. For the avoidance of doubt, neither Target nor any of its Subsidiaries is making any representation or warranty regarding the Tax treatment and consequences of the transactions contemplated by this Agreement.
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