Representations and Obligations Regarding Taxes. The Company and the Seller jointly and severally represent and warrant to and agree with the Buyer as follows: (a) There has been filed all Tax Returns or the appropriate extensions required to be filed on behalf of the Company. All such Tax Returns were correct and complete in all material respects. All Taxes owed by the Company (whether or not shown on any Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payable. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company has received any claim, in writing, from a taxing authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction. There are no Liens on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens for Taxes not yet due. (b) The Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. (c) Seller has no reasonable basis to believe that any taxing authority intends to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax liability of the Company either (i) claimed or raised by any taxing authority in writing, except as described in Schedule 8.01(c) or (ii) as to which any of the directors or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. Except as set forth on Schedule 8.1, no issue relating to Taxes of the Company has been raised in writing by a taxing authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable period. The Company has made available to Buyer correct and complete copies of all income Tax Returns (if any), examination reports and statements of deficiencies assessed against or agreed to by the Company since December 31, 2000. (d) The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. (e) The Company is not a party to any Tax allocation or sharing agreement. The Company (i) has not been a member of an Affiliated Group filing a consolidated Federal income Tax Return and (ii) has no liability for the Taxes of any Person under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parent. (f) The unpaid Taxes of the Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (other than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns. (g) Except as set forth on Schedule 8.1, the Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposes. (h) Except as set forth on Schedule 8.1, the Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 75-21 (or similar provisions of foreign law) or any safe harbor lease transaction. None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code. (i) The Company is, and has been since the date of formation of the Seller, a member of the Affiliated Group of which Seller is the common parent and the Company will be a member of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under Section 338(h)(10) of the Code (or any comparable election under state, local or foreign tax law) with respect to the Company. (j) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person within the meaning of the Code. The Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code. (k) Buyer shall (i) grant to Seller reasonable access at all reasonable times to all of the Company’s books and records (including tax work papers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date and (ii) otherwise cooperate with Seller in connection with any audit of Taxes that relate to the business of the Company prior to Closing. (l) Buyer shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable period. (m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law. (n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law; “Code” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof); “Tax” means any Federal, state, local or foreign income, gross receipts, license, payroll, employment, excise,
Appears in 1 contract
Samples: Stock Purchase Agreement (Empire Financial Holding Co)
Representations and Obligations Regarding Taxes. The Company ECS and the Seller Members jointly and severally represent and warrant to and agree with the Buyer Parent as follows:
, in each case except to the extent set forth on Schedule 10 (a) There for purposes of this Section 10, the “Companies” includes any Predecessor and any entity that at any time has been a subsidiary of a Company, and any of the Companies may be referred to individually as a “Company”):
10.1.1 Except as set forth on Schedule 10.1.1: (A) each Company has duly and timely filed all Tax Returns or the appropriate extensions it was required to be filed on behalf of the Company. All file; (B) all such Tax Returns were true, correct and complete in and all material respects. All Taxes owed by the of such Company (whether or not shown on any Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payable. The paid; (C) no Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither ; (D) the Seller nor unpaid Taxes of each Company did not, as of the Company dates of the Financials, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the balance sheets (rather than in any notes thereto) contained in the Financials; (E) since the date of the Most Recent Balance Sheet Date, none of the Companies has received incurred any claimliability for Taxes outside the Ordinary Course of Business; (F) as of the Closing Date, the unpaid Taxes of the Companies will not exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the books and records of the Companies (rather than in writing, from any notes thereto); (G) no claim has ever been made by a taxing authority Governmental Authority in a jurisdiction where the a Company does not currently file Tax Returns that the such Company is or may be subject to taxation by that jurisdiction. There ; and (h) there are no Liens Encumbrances on any of the assets of the any Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens Encumbrances for Taxes not yet due.
10.1.2 Except as set forth on Schedule 10.1.2, there is no dispute or claim concerning any Tax Liability of any Company either (bA) The claimed or raised by any authority in writing or (B) to ECS’s Knowledge based upon personal contact with any agent of such authority. No Company has withheld received from any Governmental Authority any written notice of proposed adjustment, deficiency, underpayment of Taxes or any other such notice which has not been satisfied by payment or been withdrawn, and paid all Taxes required to no claims have been withheld and paid in connection with amounts paid or owing asserted relating to such Taxes against any employee, independent contractor, creditor, stockholder or other third party.
(c) Seller has no reasonable basis to believe that any taxing authority intends to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filedCompany. There is no dispute or claim concerning any Tax liability Liability of the any Company either (i) claimed or raised by any taxing authority Governmental Authority in writing, except as described in Schedule 8.01(c) or (ii) as to which any of the directors or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. .
10.1.3 Except as set forth on Schedule 8.110.1.3, no issue relating to Taxes of the Company Tax Return has been raised in writing by a taxing authority during any pending audit audited, or examination, and no issue relating to Taxes is currently the subject of or pertaining to the Company was raised in writing by a taxing authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable periodaudit. The Company ECS has made available to Buyer in the Data Room correct and complete copies of all income of the Companies’ federal and foreign Tax Returns (if any)Returns, examination reports reports, and statements of deficiencies assessed against against, or agreed to by the any Company since December 31, 2000.
(d) The its formation. No Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a any Tax assessment or deficiency.
(e) The Company is not a party to any Tax allocation or sharing agreement. The Company (i) has not been a member of an Affiliated Group filing a consolidated Federal income Tax Return and (ii) has no liability for the Taxes of any Person under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parent.
(f) The unpaid Taxes of the Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (other than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) 10.1.4 Except as set forth on Schedule 8.110.1.4, the no Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal Federal income tax purposes.
(h) Except as set forth on Schedule 8.1, the . No Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 752001-21 28 (or similar provisions of foreign lawLaw) or any safe harbor lease transaction. None of No Company has acquired nor does it own any assets that directly or indirectly secure any debt the assets of the Company interest on which is “tax-tax exempt use property” within the meaning of under Section 168(h) 103 of the Code.
(i10.1.5 ECS has since its formation been an eligible entity as determined in Section 301.7701-3(a) The Company is, and has been since the date of formation of the SellerTreasury Regulations. ECS elected to be treated as a corporation for federal, a member state and local income tax purposes commencing January 1, 2008. The Companies are members of an Affiliated Group as defined in Section 1504 of the Affiliated Group Code of which Seller ECS is the common parent and the parent.
10.1.6 No Company will be a member of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under has engaged in any “reportable transaction” as defined in Section 338(h)(10) 1.6011-4 of the Code (Treasury Regulations.
10.1.7 No Company has received from any Governmental Authority any written notice of proposed adjustment, deficiency, underpayment of Taxes or any comparable election under stateother such notice which has not been satisfied by payment or been withdrawn, local or foreign tax law) with respect and no claims have been asserted relating to the such Taxes against any Company.
(j) The 10.1.8 Each Company has not made any payments, is not obligated withheld and paid all Taxes required to make any payments have been withheld and is not a party to any agreement that under certain circumstances, including any agreements entered into paid in connection with this Agreementamounts, could obligate it allocable, paid or owing to make any payments that will not be deductible under Section 280G of the Codeemployee, independent contractor, creditor, member, partner or other third party. The Seller is not No Company has a person other than a United States person non-accountable expense reimbursement arrangement within the meaning of Treasury Regulation Section 1.62-2(c).
10.1.9 No Company has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the Codecommon parent of which is ECS). The No Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) has any liability for the Taxes of any Person (other than Taxes of the Code during the applicable period specified in Companies under Treasury regulation Section 897(c)(l)(A)(ii) of the Code.
1.1502-6 (k) Buyer shall (i) grant to Seller reasonable access at all reasonable times to all of the Company’s books and records (including tax work papers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date and (ii) otherwise cooperate with Seller in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(l) Buyer shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable period.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law)).
10.1.10 There is no contract, agreement plan or arrangement covering any employee or former employee or independent contractor or former independent contractor of any Company that, individually or collectively, could give rise to the payment by such Company of any amount that would not be deductible by reason of Section 162(a)(1) or Section 280G of the Code.
10.1.11 Each Company has paid all estimated Taxes for all Tax periods which it is required to have paid estimated Taxes representing 100% of the estimated Taxes required to have been paid.
10.1.12 No Company has or had a permanent establishment in any foreign country or engages of has engaged in a trade or business in any foreign country.
10.1.13 No Company has had any Indebtedness that (i) was “corporate acquisition indebtedness” as defined in Section 279 of the Code; (ii) bore interest any portion of which was “disqualified interest” as defined in Section 163(j)(3) of the Code, or (iii) was an “applicable high yield discount obligation” means as defined in Section 168(i)(1) of the Internal Revenue Code Code. No Company has deducted any amounts that are required to be capitalized.
10.1.14 No Company has distributed the stock of 1986, as amended; “Company” means the Company and/or any corporation that at any time in a transaction satisfying the requirements of Section 355 of the Code within the last five (5) years, and no stock of a Company has been distributed in a subsidiary transaction satisfying the requirements of Section 355 of the Company; “Person” means an individualCode within the last five (5) years.
10.1.15 No Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion of any taxable period) after the Closing Date as a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity result of any (i) closing agreement as described in Section 7121 of the Code (or any department, agency corresponding or political subdivision thereof); “Tax” means any Federal, similar provision of state, local or foreign income, gross receipts, license, payroll, employment, excise,non-U.S. Tax law); (ii) installment sale or open transaction disposition occurring on or prior to the Closing Date; (iii) cash basis method of accounting or percentage of completion method of accounting; (iv) an election under Section 108(i) of the Code; or (v) prepaid amount received on or prior to the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Mastec Inc)
Representations and Obligations Regarding Taxes. The Company Company, MxXxxxx, and the Seller Sxxxxxxxx, hereby jointly and severally represent and warrant to and agree with the Buyer that, except as followsexpressly set forth in Company Schedule 8.1 hereto:
(a) There The Company has been timely filed all Tax Returns or the appropriate extensions that it has been required to be filed on behalf of the Companyfile. All such Tax Returns were true, correct and complete in all material respects. All material Taxes owed by the Company (whether or not shown on any such Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payabletimely paid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company No claim has received any claim, ever been made in writing, from writing by a taxing authority Governmental Authority in a jurisdiction where the Company does not file Tax Returns that the Company it is or may be subject to taxation by that jurisdiction or the requirement to file Tax Returns in that jurisdiction. There are no Liens on any of the assets Properties of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens for Taxes not yet due.
(b) The Company has (i) timely withheld and paid all Taxes required to have been withheld and paid or properly reflected in the reserve referred to in Section 8.1(f) in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder equityholder, customer or other third third-party, (ii) complied with all information reporting and backup withholding provisions of applicable Legal Requirements, and (iii) maintained all required records with respect to the items in clauses (i) and (ii).
(c) No Seller has no reasonable basis to believe that nor any taxing authority intends other manager, director or officer of the Company expects any Governmental Authority to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax liability of the Company either either, (i) claimed or raised by any taxing authority Governmental Authority in writing, except as described in Schedule 8.01(c) or (ii) as to which any of the directors Seller or any other directors, managers, or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authorityGovernmental Authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. Except as set forth on Schedule 8.1, no No issue relating to Taxes of the Company has been raised in writing by a taxing authority Governmental Authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority Governmental Authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable period. The Company has made available to the Buyer (1) correct and complete copies of all income U.S. federal, state, local and foreign income, franchise and similar Tax Returns which have been filed, (if any), 2) examination reports and statements of received by the Company, and (3) any deficiencies assessed against against, or agreed to by by, the Company in writing, in each case since December 31January 1, 20002014.
(d) The Company has not waived any statute of limitations in respect of Taxes or requested or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) The Company is not a party to any Tax allocation or sharing agreement. The Company Company, (i) has not been a member of an Affiliated Group filing a consolidated Federal federal income Tax Return Return, and (ii) has no liability for the Taxes of any Person under Treasury Regulation section Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parentotherwise.
(f) The unpaid Taxes of the Company Company, (i) did do not, as of the most recent fiscal month endBalance Sheet Date, exceed the reserve for Tax liability (other than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) Company Financial Statements, and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) Except as set forth on Schedule 8.1, the Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposes.
(h) Except as set forth on Schedule 8.1, the Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 75-21 (or similar provisions of foreign law) or any safe harbor lease transaction. None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code.
(i) The Company is, and has been since the date of formation of the Seller, a member of the Affiliated Group of which Seller is the common parent and the Company will be a member of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under Section 338(h)(10) of the Code (or any comparable election under state, local or foreign tax law) with respect to the Company.
(j) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person within the meaning of the Code. The Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.
(k) Buyer shall (i) grant to Seller reasonable access at all reasonable times to all of the Company’s books and records (including tax work papers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date and (ii) otherwise cooperate with Seller in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(l) Buyer shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable period.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law; “Code” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof); “Tax” means any Federal, state, local or foreign income, gross receipts, license, payroll, employment, excise,
Appears in 1 contract
Representations and Obligations Regarding Taxes. The Except as otherwise set forth in Schedule 8.1, the Company and the Seller Members jointly and severally represent and warrant to and agree with the Buyer as follows:
(a) There The Company has been filed all Tax Returns or the appropriate extensions that it was required to be filed on behalf of the Companyfile. All such Tax Returns were correct and complete in all material respects. All Taxes owed by the Company (whether or not shown on any Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payablepaid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company No claim has received any claim, in writing, from ever been made by a taxing authority in a jurisdiction where the Company does not file Tax Returns that the Company it is or may be subject to taxation by that jurisdiction. There are no Liens liens on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens liens for Taxes not yet due.
(b) The Company has withheld and timely paid over all Taxes required to have been be withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(c) Seller has no reasonable basis to believe that No member or officer (or employee responsible for Tax matters) of the Company expects any taxing authority intends to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax liability of the Company either (i) claimed or raised by any taxing authority in writing, except as described in Schedule 8.01(c) writing or (ii) as to which any of the directors members or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authority. Schedule 8.1 lists all federal, state, local local, and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company2012. Except as set forth on Schedule 8.1, no No issue relating to Taxes of the Company has been raised in writing by a taxing authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable period. The Company has made available to Buyer correct and complete copies of all income Tax Returns (if any), examination reports and statements of deficiencies assessed against or agreed to by the Company since December 31, 2000.
(d) The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) The Company is not a party to any Tax allocation or sharing agreement. The Company (i) has not been a member of an Affiliated Group filing a consolidated Federal income Tax Return and (ii) has no liability for the Taxes of any Person under Treasury Regulation section 1.1502-6 (or any similar provision of state, local local, or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parentotherwise.
(f) The unpaid Taxes of the Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (other than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) Except as set forth on Schedule 8.1, the Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax Tax purposes.
(hg) Except as set forth on Schedule 8.1, the The Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 752001-21 28 (or similar provisions of foreign law) or any safe harbor lease transaction. None .
(h) All material elections with respect to Taxes affecting the Company or Assets are disclosed or attached to a Tax Return of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the CodeCompany.
(i) The Company is, and has been since All private letter rulings issued by the date of formation of the Seller, a member of the Affiliated Group of which Seller is the common parent and Internal Revenue Service to the Company will be a member (and any corresponding ruling or determination of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under Section 338(h)(10) of the Code (or any comparable election under state, local or foreign tax lawtaxing authority) with respect to the Companyhave been disclosed on Schedule 8.1, and there are no pending requests for any such rulings (or corresponding determinations).
(j) The Company has not made any payments, is not obligated to make any payments and is not been treated as a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person partnership within the meaning of the Code. The Company is not, Treasury Regulation Section 301.7701-3(b) for U.S. federal and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.
(k) Buyer shall (i) grant to Seller reasonable access at all reasonable times to all of the Company’s books and records (including tax work papers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date and (ii) otherwise cooperate with Seller in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(l) Buyer shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign state income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after purposes since the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable periodits formation.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law; “Code” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof); “Tax” means any Federal, state, local or foreign income, gross receipts, license, payroll, employment, excise,
Appears in 1 contract
Samples: Asset Purchase Agreement (Smith & Wesson Holding Corp)
Representations and Obligations Regarding Taxes. The Company Company, XxXxxxx, and the Seller Xxxxxxxxx, hereby jointly and severally represent and warrant to and agree with the Buyer that, except as followsexpressly set forth in Company Schedule 8.1 hereto:
(a) There The Company has been timely filed all Tax Returns or the appropriate extensions that it has been required to be filed on behalf of the Companyfile. All such Tax Returns were true, correct and complete in all material respects. All material Taxes owed by the Company (whether or not shown on any such Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payabletimely paid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company No claim has received any claim, ever been made in writing, from writing by a taxing authority Governmental Authority in a jurisdiction where the Company does not file Tax Returns that the Company it is or may be subject to taxation by that jurisdiction or the requirement to file Tax Returns in that jurisdiction. There are no Liens on any of the assets Properties of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens for Taxes not yet due.
(b) The Company has (i) timely withheld and paid all Taxes required to have been withheld and paid or properly reflected in the reserve referred to in Section 8.1(f) in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder equityholder, customer or other third third-party, (ii) complied with all information reporting and backup withholding provisions of applicable Legal Requirements, and (iii) maintained all required records with respect to the items in clauses (i) and (ii).
(c) No Seller has no reasonable basis to believe that nor any taxing authority intends other manager, director or officer of the Company expects any Governmental Authority to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax liability of the Company either either, (i) claimed or raised by any taxing authority Governmental Authority in writing, except as described in Schedule 8.01(c) or (ii) as to which any of the directors Seller or any other directors, managers, or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authorityGovernmental Authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. Except as set forth on Schedule 8.1, no No issue relating to Taxes of the Company has been raised in writing by a taxing authority Governmental Authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority Governmental Authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable period. The Company has made available to the Buyer (1) correct and complete copies of all income U.S. federal, state, local and foreign income, franchise and similar Tax Returns which have been filed, (if any), 2) examination reports and statements of received by the Company, and (3) any deficiencies assessed against against, or agreed to by by, the Company in writing, in each case since December 31January 1, 20002014.
(d) The Company has not waived any statute of limitations in respect of Taxes or requested or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) The Company is not a party to any Tax allocation or sharing agreement. The Company Company, (i) has not been a member of an Affiliated Group filing a consolidated Federal federal income Tax Return Return, and (ii) has no liability for the Taxes of any Person under Treasury Regulation section Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parentotherwise.
(f) The unpaid Taxes of the Company Company, (i) did do not, as of the most recent fiscal month endBalance Sheet Date, exceed the reserve for Tax liability (other than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) Company Financial Statements, and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) Except as set forth on Schedule 8.1, the Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposes.
(h) Except as set forth on Schedule 8.1, the Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 75-21 (or similar provisions of foreign law) or any safe harbor lease transaction. None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code.
(i) The Company is, and has been since the date of formation of the Seller, a member of the Affiliated Group of which Seller is the common parent and the Company will be a member of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under Section 338(h)(10) of the Code (or any comparable election under state, local or foreign tax law) with respect to the Company.
(j) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person within the meaning of the Code. The Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.
(k) Buyer shall (i) grant to Seller reasonable access at all reasonable times to all of the Company’s books and records (including tax work papers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date and (ii) otherwise cooperate with Seller in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(l) Buyer shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable period.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law; “Code” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof); “Tax” means any Federal, state, local or foreign income, gross receipts, license, payroll, employment, excise,
Appears in 1 contract
Representations and Obligations Regarding Taxes. The Company represents and the Seller jointly and severally represent and warrant warrants to and agree agrees with the Buyer that, except as followsset forth on Schedule 8.1:
(a) There The Company has been filed all material Tax Returns or the appropriate extensions that it was required to be filed on behalf of the Companyfile. All such Tax Returns were correct and complete in all material respects. All material Taxes owed by the Company (whether or not shown on any Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payablepaid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company No claim has received any claim, in writing, from ever been made by a taxing authority in a jurisdiction where the Company does not file Tax Returns that the Company it is or may be subject to taxation by that jurisdiction. There are no Liens liens on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens liens for Taxes not yet duedue or those being contested in good faith.
(b) The Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(c) Seller No director or officer (or employee responsible for Tax matters) of the Company has no reasonable basis to believe that received any communication, written or oral, from any taxing authority intends to assess or any representative or employee thereof indicating that the taxing authority may assert any liability for any material additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any material Tax liability of the Company either (i) claimed or raised by any taxing authority in writing, except as described in Schedule 8.01(c) writing or (ii) as to which any of the directors or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. Except as set forth on Schedule 8.1, no issue relating to Taxes of the Company has been raised in writing by a taxing authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable period. The Company has made available delivered to Buyer correct and complete copies of all Federal, state and local income Tax Returns (if any)Returns, examination reports and statements of deficiencies assessed against or agreed to by the Company since December 31, 2000Company.
(d) The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) The Company has not filed a consent under Section 341(f) of the Code concerning collapsible corporations. The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under section 280G of the Code. The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. The Company has disclosed on its Federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of Federal income Tax within the meaning of Section 6662 of the Code. The Company is not a party to any Tax allocation or sharing agreement. The Company (i) has not been a member of an Affiliated Group filing a consolidated Federal income Tax Return and (ii) has no liability for the Taxes of any Person under Treasury Regulation regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parentotherwise.
(f) The unpaid Taxes of the Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (other rather than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) The Company shall not be required to include in a taxable period ending after the Closing Date taxable income attributable to income that accrued in a prior taxable period but was not recognized in any prior taxable period as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting or Section 481 of the Code or any comparable provision of state, local or foreign tax law.
(h) Except as set forth on Schedule 8.1, the Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal Federal income tax purposes.
(hi) Except as set forth on Schedule 8.1, the Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 75-21 (or similar provisions of foreign law) or any safe harbor lease transaction. None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code.
(i) The Company is, and has been since the date of formation of the Seller, a member of the Affiliated Group of which Seller is the common parent and the Company will be a member of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under Section 338(h)(10) of the Code (or any comparable election under state, local or foreign tax law) with respect to the Company.
(j) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person never been an S corporation (within the meaning of the Code. The Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii1361(a)(1) of the Code).
(k) Buyer All material elections with respect to Taxes affecting the Company are disclosed or attached to a Tax Return of the Company.
(l) All private letter rulings issued by the Internal Revenue Service to the Company (and any corresponding ruling or determination of any state, local or foreign taxing authority) have been disclosed on Schedule 8.1, and there are no pending requests for any such rulings (or corresponding determinations).
(m) The Company shall (i) grant to Seller reasonable Buyer or its designees access at all reasonable times to all of the Company’s 's books and records (including tax work papers workpapers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent such books and records relate to taxable periods ending on or prior to or that include the Closing Date. Buyer shall (i) grant to the Stockholders' Representative access at all reasonable times to all of the Company's books and records (including tax workpapers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date Date, and (ii) otherwise cooperate with Seller the Stockholders' Representative in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(ln) Buyer shall be responsible for preparing and filing, or causing Neither the Company to prepare and file, all Tax Returns nor any of the Company required to be filed after the Closing Date other than federal, state, local Stockholders has taken or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns will take any action that could result in a deemed election under section 338 of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties Code with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination 's purchase of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable periodShares.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign law; “Code” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof); “Tax” means any Federal, state, local or foreign income, gross receipts, license, payroll, employment, excise,
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunglass Hut International Inc)
Representations and Obligations Regarding Taxes. The Company and the Seller hereby jointly and severally represent and warrant to and agree with the Buyer that, except as followsexpressly set forth in Schedule 7.1 hereto:
(a) There The Company has been timely filed all Tax Returns or the appropriate extensions that it has been required to be filed on behalf of the Companyfile. All such Tax Returns were true, correct and complete in all material respects. All Taxes owed by the Company (whether or not shown on any Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payabletimely paid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company No claim has received any claim, ever been made in writing, from writing by a taxing authority Governmental Authority in a jurisdiction where the Company does not file Tax Returns that the Company it is or may be subject to taxation by that jurisdiction or the requirement to file Tax Returns in that jurisdiction. There are no Liens on any of the assets Properties of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens for Taxes not yet due.
(b) The Company has (i) timely withheld and paid all Taxes required to have been withheld and paid or properly reflected in the reserve referred to in Section 7.1(f)(ii) in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder equityholder, customer or other third third-party, (ii) complied with all information reporting and backup withholding provisions of applicable Legal Requirements, and (iii) maintained all required records with respect to the items in clauses (i) and (ii).
(c) Neither the Seller has no reasonable basis to believe that nor any taxing authority intends other manager, director or officer (or employee responsible for Tax matters) of the Company expects any Governmental Authority to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax liability of the Company either either, (i) claimed or raised by any taxing authority Governmental Authority in writing, except as described in Schedule 8.01(c) or (ii) as to which the Seller or any of the directors other directors, managers, or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authorityGovernmental Authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. Except as set forth on Schedule 8.1, no No issue relating to Taxes of the Company has been raised in writing by a taxing authority Governmental Authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority Governmental Authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable period. The Company has made available delivered to the Buyer correct and complete copies of all income U.S. federal, state, local and foreign income, franchise and similar Tax Returns (if any)which have been filed, examination reports and statements of deficiencies assessed against against, or agreed to by by, the Company since December 31March 10, 20002010.
(d) The Company has not waived any statute of limitations in respect of Taxes or requested or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) The Company is not a party to any Tax allocation or Tax sharing agreement. The Company Company, (i) has not been a member of an Affiliated Group filing a consolidated Federal federal income Tax Return Return, and (ii) has no liability for the Taxes of any Person under Treasury Regulation section Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parentotherwise.
(f) The unpaid Taxes of the Company Company, (i) did do not, as of the most recent fiscal month endBalance Sheet Date, exceed the reserve for Tax liability (other than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet Company Financial Statements (rather than in any notes thereto) ), and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) Except as set forth on Schedule 8.1, the The Company is not a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax Tax purposes.
(h) Except as set forth on Schedule 8.1, the The Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 752001-21 28 (or similar provisions of foreign law) or any safe harbor lease transaction. None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code.
(i) All material elections with respect to Taxes affecting the Company are disclosed or attached to a Tax Return of the Company.
(j) All private letter rulings or similar rulings, memoranda, or determinations issued by any Governmental Authority to the Company (including without limitation any rulings, memoranda or determinations issued by any state, local or foreign Governmental Authority to the Company) have been disclosed in Schedule 7.1, and there are no pending requests for any such rulings, memoranda or determinations.
(k) The Company iswill not be required to include any items of income in, and has been since the date or exclude any items of formation of the Sellerdeduction from, a member of the Affiliated Group of which Seller is the common parent and the Company will be a member of such Affiliated Group through and including taxable income for any taxable period (or portion thereof) ending after the Closing Date. The Seller is eligible Date as a result of (i) any change in method of accounting for a taxable period ending on or prior to make an election the Closing Date under Section 338(h)(10481(a) of the Code (or any comparable election under state, local corresponding or foreign tax law) with respect to the Company.
(j) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person within the meaning of the Code. The Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.
(k) Buyer shall (i) grant to Seller reasonable access at all reasonable times to all of the Company’s books and records (including tax work papers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date and (ii) otherwise cooperate with Seller in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(l) Buyer shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable period.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(n) As used in this Article VIII, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or any similar group defined under a similar provision of state, local or foreign income Tax law); (ii) any “Codeclosing agreement” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary described in Section 7121 of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity Code (or any department, agency corresponding or political subdivision thereof); “Tax” means any Federal, similar provision of state, local or foreign incomeincome Tax law); (iii) any installment sale or open transaction made on or prior to the Closing Date; (iv) any prepaid amount received on or prior to the Closing Date; (v) the cash basis method of accounting or percentage of completion method of accounting; or (vi) an election under Section 108(i) of the Code.
(l) There are no Tax-sharing agreements or similar arrangements (including indemnity arrangements) with respect to or involving the Company, gross receiptsand, licenseafter the Closing Date, payrollthe Company will not be bound by any such Tax-sharing agreements or similar arrangements entered into prior to the Closing or have any liability thereunder for amounts due in respect of periods prior to the Closing Date.
(m) At all times since its conversion to a limited liability company on February 24, employment2010, excise,the Company has been treated as disregarded as an entity separate from the Seller for U.S. federal and applicable state and local income Tax purposes and will continue to be treated as disregarded as an entity separate from the Seller up through the Closing.
(n) The Company does not have and has not had a permanent establishment in any foreign country and does not engage and has not engaged in a trade or business in any foreign country.
(o) The Company has not entered into any transaction identified as a “reportable transaction” or “listed transaction” for purposes of Treasury Regulations Sections 1.6011-4(b). If the Company has entered into any transaction such that, if the treatment claimed by it were to be disallowed, the transaction would constitute a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code, then it believes that it has either (i) substantial authority for the tax treatment of such transaction or (ii) reasonable basis for the tax treatment of such transaction and disclosed on its Tax Returns the relevant facts affecting the tax treatment of such transaction.
(p) The Company is not subject to a Tax holiday or Tax incentive or grant in any jurisdiction (collectively, a “Tax Incentive”) that will terminate (or be subject to a clawback or recapture) as a result of the transactions contemplated by this Agreement. There is no potential for any Tax Incentive that was realized on or prior to the Closing Date to be subject to recapture as a result of any actions or activities following the Closing Date.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Neogenomics Inc)
Representations and Obligations Regarding Taxes. The Each of the Company and the Seller jointly each Guarantor represents and severally represent and warrant warrants to and agree agrees with the Buyer Investor as follows:
(a) There The Company has been filed all Tax Returns or the appropriate extensions that it was required to be filed on behalf of the Companyfile. All such Tax Returns were correct true, correct, and complete in all material respects. All Taxes owed by the Company (whether or not shown on any Tax Return and whether or not any Tax Return was required) for periods prior to the date hereof have been paid other than Taxes not yet due and payablepaid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. Neither the Seller nor the Company No claim has received ever been made by any claim, in writing, from a taxing authority Governmental Authority in a jurisdiction where the Company does not file Tax Returns that the Company it is or may be subject to taxation by that jurisdiction. There are no Liens on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax, except for Liens for Taxes not yet due.
(b) The Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder Chinese Equity Interest Holders, or other third party.
(c) Seller has no reasonable basis to believe that No director or officer (or employee responsible for Tax matters) of the Company expects any taxing authority intends Governmental Authority to assess any additional Taxes owed by or pertaining to the Company for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax liability of the Company either (i) claimed or raised by any taxing authority Governmental Authority in writing, except as described in Schedule 8.01(c) writing or (ii) as to which any of the directors or officers (or employees responsible for Tax matters) of the Company or the Seller has actual knowledge (after reasonable investigation) based upon personal contact with any agent of such taxing authority. Schedule 8.1 lists all federal, state, local and foreign income Tax Returns filed with respect to the Company for taxable periods ended on or after December 31, 2000, indicates those Tax Returns that have been audited and indicates those Tax Returns that currently are the subject of audit or in respect of which any written or unwritten notice of any audit or examination has been received by the Company. Except as set forth on Schedule 8.1, no issue relating to Taxes of the Company has been raised in writing by a taxing authority during any pending audit or examination, and no issue relating to Taxes of or pertaining to the Company was raised in writing by a taxing authority in any completed audit or examination, that reasonably can be expected to recur in a later taxable periodGovernmental Authority. The Company has made available delivered to Buyer correct the Investor true, correct, and complete copies of all income Tax Returns (if any)Returns, examination reports reports, and statements of deficiencies assessed against or agreed to by the Company since December 31January 1, 20002003.
(d) The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
(e) The Schedule 9.1(f) sets forth the following information with respect to the Company is not a party as of the most recent practicable date (as well as on an estimated pro forma basis as of the Closing giving effect to any Tax allocation or sharing agreement. The Company the consummation of the Transaction contemplated hereby): (i) has not been a member the basis of an Affiliated Group filing a consolidated Federal income Tax Return the Company in its assets; and (ii) has no liability for the Taxes amount of any Person under Treasury Regulation section 1.1502-6 (net operating loss, net operating loss carryover, net capital loss, net capital loss carryover, Tax credit, Tax credit carryover, or any excess charitable contribution and similar provision credits or deductions of state, local or foreign law), as a transferee or successor, by contract or otherwise other than the Affiliated Group of which the Seller is the common parentCompany.
(f) The unpaid Taxes of the Company (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax liability (other rather than any reserve for deferred Taxes of the Company established to reflect timing differences between book and Tax income) set forth on the face of the most recent balance sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company in filing its Tax Returns.
(g) Except as set forth on Schedule 8.1, All material elections with respect to Taxes affecting the Company is not are disclosed or attached to a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposesTax Return of the Company.
(h) Except as set forth on Schedule 8.1, the Company has not entered into any sale leaseback or leveraged lease transaction that fails to satisfy the requirements of Revenue Procedure 75-21 (or similar provisions of foreign law) or any safe harbor lease transaction. None of the assets of the Company is “tax-exempt use property” within the meaning of Section 168(h) of the Code.
(i) The Company is, and has been since the date of formation of the Seller, a member of the Affiliated Group of which Seller is the common parent and the Company will be a member of such Affiliated Group through and including the Closing Date. The Seller is eligible to make an election under Section 338(h)(10) of the Code (or any comparable election under state, local or foreign tax law) with respect shall grant to the Company.
(j) The Company has not made any payments, is not obligated to make any payments and is not a party to any agreement that under certain circumstances, including any agreements entered into in connection with this Agreement, could obligate it to make any payments that will not be deductible under Section 280G of the Code. The Seller is not a person other than a United States person within the meaning of the Code. The Company is not, and not been, a United States real property holding company, as defined in Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.
(k) Buyer shall (i) grant to Seller reasonable Investor or its designees access at all reasonable times to all of the Company’s books and records (including tax work papers workpapers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent such books and records relate to taxable periods ending on or prior to or that include the Closing Date. Investor shall (i) grant to the Company access at all reasonable times to all of the Company’s books and records (including tax workpapers and returns and correspondence with tax authorities), including the right to take extracts therefrom and make copies thereof, to the extent that such books and records relate to the operations of the Company during taxable periods ending on or prior to or that include the Closing Date Date, and (ii) otherwise cooperate with Seller the Company in connection with any audit of Taxes that relate to the business of the Company prior to Closing.
(li) Buyer The subscription for the Capital Increase by the Investor pursuant to the terms of this Agreement will not result in any Tax liability to the Company or the Investor.
(j) The Company shall be responsible for preparing and filing, or causing the Company to prepare and file, all Tax Returns of the Company required to be filed after the Closing Date other than federal, state, local or foreign income tax returns applicable to the Company’s business through the Closing Date. Buyer shall provide to Seller (i) copies of all Tax Returns of the Company which Buyer prepares and which reflect any Tax for which the Buyer believes Seller is responsible and (ii) a calculation of the portion of the Tax that Buyer believes the Seller is responsible for. Such Tax Returns and calculations shall be provided to Seller at least ten days prior to the filing of such Tax Returns; provided however that any failure to provide such information will not waive any rights of Buyer except to the extent that Seller’s rights or ability to defend are prejudiced. Any dispute among the parties with respect to the Taxes which Buyer believes are due from Seller, whether due to the computation of Tax on the Tax Return or allocation of such Tax among the Buyer, Seller or Company, shall be resolved in a manner consistent with the provisions of Section 1.5 pertaining to the resolution of disputes with respect to the determination of the Purchase Price Adjustment. Seller shall pay to Buyer, within five days after the date on which Taxes are paid with respect to periods beginning before the Closing Date and ending on or after the Closing Date, an amount equal to the portion of those Taxes that relates to the portion of the taxable period ending on the Closing Date. For purposes of this Agreement, in the case of any period that begins before the Closing Date and ends after the Closing Date, any tax based directly or indirectly on gross or net income or receipts or imposed in respect of specific transactions, and any credits available with respect to any Tax, shall be allocated by assuming that the taxable period ended on the Closing Date, and any other tax shall be allocated based on the number of days in the taxable period ending on the Closing Date divided by the total number of days in the taxable period.
(m) Seller shall be responsible for preparing and filing all Tax Returns of the Company required to be filed with respect to all periods ending on or before the Closing Date for federal, state, local or foreign Taxes and shall pay all Taxes owed by the Company (whether or not shown on any return or whether or not a return is required) for all periods ending on or before the Closing Date, including any Tax resulting from the 338(h)(10) Election or any comparable election under state or local Tax Law.
(nk) As used in this Article VIIIAgreement, “Affiliated Group” means any affiliated group within the meaning of Section 1504(a) of the Code or under any similar group defined under a similar provision of statenational, local provincial, local, or foreign law; “Code” means the Internal Revenue Code of 1986, as amended; “Company” means the Company and/or any corporation that at any time has been a subsidiary of the Company; “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof); “Tax” means any Federalnational, provincial, state, local or foreign income, gross receipts, license, payroll, employment, excise,, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, and “Taxes” means any or all of the foregoing collectively; and “Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto and including any amendment thereof.
Appears in 1 contract
Samples: Capital Increase and Equity Subscription Agreement (Regal Life Concepts, Inc.)
