Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim. 4.7.2 Each of the Sellers 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, shareholder or other third party. 4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation. 4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. 4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns. 4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Playboy Enterprises Inc), Asset Purchase Agreement (Playboy Enterprises Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties Chiron represents and warrants to the Purchaser that, except as set forth in Schedule 6.2.2, the Company and each Subsidiary have timely filed or will file (or, where permitted or required, its respective direct or indirect parents have caused to be timely filed or will file or will cause to be filed file) all required Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties due for all periods ending on or before the Closing Date. Adequate Except as disclosed in Schedule 6.2.2, adequate provision has been made in the books and records of the Company and each of the SellersSubsidiary, and to the extent required by GAAP in the Financial StatementsStatements referred to in Section 2.7 above or in any other financial statements delivered or to be delivered to the Purchaser, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments Neither the Company nor any Subsidiary has elected to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. be treated as a consenting corporation under Section 4.7.1 341(f) of the Sellers Disclosure Code. Schedule 6.2.2 lists the date or dates through which the IRS and any other Governmental Entity governmental entity or body have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesCompany and its Subsidiaries. All required Tax Returns, including amendments to date, have been prepared in good faith without negligence or willful misrepresentation and are complete and accurate in all material respects. Except as set forth in Section 4.7.1 of the Sellers Disclosure ScheduleSchedule 6.2.2, no Governmental Entity has governmental entity or body has, during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties Company or any Subsidiary. Except as set forth on Schedule 6.2.2, no governmental entity or body has proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller PartiesChiron, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency deficiency assessment or claim.
4.7.2 Each . Chiron has provided to the Purchaser all Tax Returns filed for the Company on a separate basis (and related work papers, audit papers or other relevant documents for Tax Returns) and excerpts from consolidated and combined returns relating to tax items of the Sellers withheld Company, included therein for the prior three years and paid for all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of prior periods that are still open under the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes which have been requested by the Purchaser or agreed to any extension of time with respect to a Tax assessment or deficiencyits duly authorized representatives.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Chiron Corp), Stock Purchase Agreement (Bausch & Lomb Inc)
Tax and Other Returns and Reports. 4.7.1 (a) The Seller Parties Target Companies have timely filed or have caused to be filed or will timely file or will cause to be filed all Tax Returns required to have been filed through the Closing Date as they become due and all Tax Returns filed, or to be filed filed, by the Target Companies have been and will be true, correct, and complete in all material respects. The Target Companies have timely paid all Taxes required to be have been paid by (whether or not shown on any Tax Return) and have adequately provided in the Seller Parties applicable Financial Statements for all Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the date of the statement. The provisions for Taxes of the Target Companies currently payable on the date of the Financial Statements are at least equal, as of the date thereof, to all unpaid Taxes of the Target Companies whether or not disputed. The Target Companies do not and will not have accrued liability for Taxes in respect of taxable periods or portions thereof following the date of the Financial Statements and ending on or before the Closing Date, other than Taxes incurred in the ordinary course of business.
(b) There is no outstanding claim, audit or other examination or proceeding with respect to Taxes of the Target Companies. Adequate provision No claim has been made by any Taxing Authority in any jurisdiction where the books and records of each of Target Companies do not file Tax Returns that the Sellers, and Target or any Affiliate is or may be subject to the extent required Tax by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputedthat jurisdiction. The Seller Parties Target Companies have prepared all required Tax Returnsnot granted, including amendments nor has any received any requests to dategrant, in good faith without gross negligence any extensions or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 waivers of the Sellers Disclosure Schedule lists the date or dates through which the IRS and statutes of limitations with respect to any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of any of the Seller PartiesTarget Companies.
(c) The Target Companies are not party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement, or any closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof, or any similar provision of state, local or foreign law or offer in compromise with any Taxing Authority. Except as set forth in Section 4.7.1 of the Sellers Disclosure Scheduleon Schedule 4.31(c), no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) Target Company has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a affiliated group of corporations, within the common parent meaning of which were one or the other Section 1504 of the SellersCode, or a member of a combined, consolidated or unitary group for state, local or foreign Tax purposes and has no liability for Taxes of another Person (i) under Treasury Regulation Section 1.1502-6, (ii) as a successor or transferee or (biii) has by Contract or otherwise.
(d) The Target Companies will not be required to include for Tax purposes any Liability item of income in, or exclude any item of deduction from, taxable income for any taxable period ending after the Taxes Closing Date as a result of any Person (other than any A) change in method of tax accounting for a taxable period ending on or prior to the Closing Date, (B) closing agreement as described in Section 7121 of the Sellers) under Reg. ss.1.1502-6 Code (or any corresponding or similar provision of state, local, or foreign Income Tax law) executed on or prior to the Closing Date, (C) installment sale or open transaction disposition made on or prior to the Closing Date, or (D) prepaid amount received on or prior to the Closing Date.
(e) The Target does not have any direct or indirect foreign Subsidiaries.
(f) Except as set forth on Schedule 4.31(f), there are no Liens for Taxes upon the assets of the Target Companies, other than Taxes for the current period that are not yet due or payable. None of the assets of the Target Companies is property that is required to be treated as owned by another Person pursuant to the “safe harbor lease” provisions of the Code and in effect immediately prior to the enactment of the Tax Reform Act of 1986, and none of the foregoing assets in “tax exempt use property” within the meaning of Section 168(h) of the Code.
(g) The Target Companies have complied in all material respects with all applicable Law relating to record retention (including, without limitation, to the extent necessary to claim any exemption from sales tax collection, maintaining adequate and current resale certifications to support any such claimed exemptions).
(h) All charges for goods or services made, and transactions, between each Target Company and between a Target Company and any Affiliate has satisfied all transfer pricing requirements under Applicable Law and, to the knowledge of the Representing Parties, none of such charges is subject to adjustment under Applicable Law. Each Target Company has complied, in all material respects, with all information reporting and record keeping requirements under all applicable Law, including retention and maintenance of required records with respect thereto and contemporaneous documentation requirements regarding transfer pricing policies.
(i) No Target Companies is a party to any Contract or other arrangement or plan that has resulted or would result, individually or in the aggregate, in connection with this Agreement or any change of control of any Target Company, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code.
(j) No Target Companies has participated in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(1) (other than such transactions that have been properly reported), or transactions that constitute “listed transactions” as such term is defined in Treasury Regulation Section 1.6011-4(b)(2).
(k) The Target is not a foreign person within the meaning of Sections 897 and 1445 of the Code. No Tax is required to be withheld pursuant to Section 1445 of the Code as a transferee or successor, result of any of the transfers contemplated by contract, or otherwisethis Agreement.
Appears in 1 contract
Samples: Merger and Share Exchange Agreement (BGS Acquisition Corp.)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all (a) Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesAudits. Except as set forth on Company Schedule 2.12(a):
(i) As of the Effective Time, the Company will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations, including the calculations of net operating losses for purposes of such Returns, and such Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) As of the Effective Time, the Company (A) will have paid all Taxes it is required to pay and will have withheld with respect to its employees all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified of any request for such an audit or other examination.
(v) The Company does not have any material liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Current Balance Sheet other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any material Lien on the assets of the Company.
(ix) None of the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 4.7.1 341(f)(4) of the Sellers Disclosure ScheduleCode) owned by the Company.
(xi) The Company is not a party to any tax sharing, no Governmental Entity indemnification or allocation agreement nor does the Company owe any amount under any such agreement.
(xii) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xiii) The Company is not, and has during not been at any time, a "United States Real Property Holding Corporation" within the past three years, examined or is in the process meaning of examining any Tax Returns Section 897(c)(2) of the Seller Parties or Code.
(xiv) No adjustment relating to any Return filed by the Company has been proposed (tentatively or definitively), asserted or assessed formally or, to the best knowledge Company's knowledge, informally by any tax authority to the Company or any representative thereof.
(xv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of each stock qualifying for tax-free treatment under Section 355 of the Seller Parties, threatened Code (i) in the two years prior to propose the date of this Agreement or assert, any deficiency, assessment (ii) in a distribution which could otherwise constitute part of a "plan" or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each "series of related transactions" (within the Sellers 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, shareholder or other third party.
4.7.3 None meaning of the Seller Parties nor any director or officer (or employee responsible for Tax mattersSection 355(e) of the Sellers reasonably expects Code) in conjunction with the Merger
(xvi) The Company has not taken any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability action nor knows of any of fact, agreement, plan or other circumstance that is reasonably likely to prevent the Sellers either (a) claimed or raised by any authority in writing or (b) Merger from qualifying as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax mattersa reorganization under Section 368(a) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporationCode.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have Except as set forth in Schedule 2.4, RLI has timely filed or have caused to be filed or will file prior to Closing all required Tax Returns and has paid or will cause to be filed all Tax Returns required to be filed and have paid by Closing all Taxes required to be paid by the Seller Parties due for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the SellersRLI, and to the extent required by GAAP GAAP, in the RLI Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties Except as set forth on Schedule 2.4, RLI has withheld and paid all Taxes required to be withheld and paid in connection with amounts paid or owing to any employee, independent contractor, customer, creditor, stockholder or other third party. RLI has not elected to be treated as a consenting corporation under Section 341(f) of the Internal Revenue Code of 1986, as amended (the "Code"). Schedule 2.4 lists the date or dates through which the Internal Revenue Service and any other government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign (a "GOVERNMENTAL ENTITY") have prepared all examined the United States federal income Tax Returns and any other Tax Returns of RLI. All required Tax Returns, including amendments to date, have been prepared in good faith without gross negligence or willful misrepresentation, misrepresentation and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure ScheduleSchedule 2.4, no Governmental Entity has has, during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or RLI. Except as set forth on Schedule 2.4, no Governmental Entity has proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller PartiesStockholders, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Avtel Communications Inc/De)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal, state, local and foreign tax returns, reports, statements and other similar filings required to be filed by Transferor (the “Tax Returns”) with respect to any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and have paid other governmental charges or impositions, (including without limitation all Taxes required to be paid by the Seller Parties for all periods ending on income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license and any other tax or before the Closing Date. Adequate provision has been made in the books and records of each similar governmental charge or imposition under laws of the Sellers, and to United States or any state of municipal or political subdivision thereof or any foreign country or political subdivision thereof) (the extent required by GAAP “Taxes”) have been filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, jurisdictions in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete due and accurate in required to be filed, and all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other such Tax Returns properly reflect the liabilities of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim Transferor for Taxes and there would be no basis for any such delinquency assessment the periods, property or claim.
4.7.2 Each of events covered thereby. All taxes, including those without limitation which are called for by the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed heretofore or hereafter claimed to be due by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations taxing authority from Transferor, have been properly accrued or paid. The accruals for Taxes contained in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Balance Sheet (rather than are adequate to cover the tax liabilities of Transferor with respect to the Business as of that date and include adequate provision for all deferred taxes, and nothing has occurred subsequent to that date to make any of such accruals inadequate. Transferor has not received any notice of assessment or proposed assessment in any notes thereto) and (b) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance connection with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation Returns and there are not pending tax examinations of or sharing agreementtax claims asserted against Transferor or any of its assets or properties. None Transferor has not extended, or waived the application of, any statute of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes limitations of any Person jurisdiction regarding the assessment or collection of any Taxes. There are no tax liens (other than any lien for current taxes not yet due and payable) on any of the Sellers) assets or properties of Transferor. To Transferor’s Knowledge there is no reasonable basis for any additional assessment of any Taxes. Transferor has made all deposits required by law to be made with respect to employees’ withholding and other employment taxes, including without limitation the portion of such deposits relating to taxes imposed upon Transferor. For purposes of this Agreement, “Transferor’s Knowledge” means Lang’s actual knowledge after reasonable inquiry under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwisethe circumstances.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal, state, local and --------------------------------- foreign tax returns, reports, statements and other similar filings required to be filed and have paid all Taxes required to be paid by Seller (the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid in connection "TAX RETURNS") with amounts paid or owing respect to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, locallocal or foreign taxes, assessments, interest, penalties, deficiencies, fees and other governmental charges or impositions, (including, without limitation, all income tax, unemployment compensation, Social Security, payroll, sales and use, excise, privilege, property, and any other tax or similar governmental charge or imposition under the laws of the United States or any state or municipal or political subdivision thereof or of any foreign income Tax Returns that county or political subdivision thereof) (the "TAX") have been audited and/or that currently filed with the appropriate governmental agencies in all jurisdictions in which such tax returns are the subject of audit. Sellers have delivered required to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reportsbe filed, and statements all such tax returns property reflect the liabilities of deficiencies assessed against Seller for taxes for the periods, property or agreed events covered thereby. All taxes, including without limitation those which are called for by the tax returns, or heretofore or hereafter claimed to be due by any taxing authority from Seller, have been properly accrued or paid and no taxes are currently delinquent. The accruals for taxes contained in the Financial Statements are accurate to cover the tax liabilities of Seller with respect to the Sellers since their business as of that date and include adequate provision for all deferred taxes, and nothing has occurred subsequent to the date to make any of incorporation.
4.7.4 None such accruals inadequate. Seller is currently undergoing an audit by the Internal Revenue Service for the tax years 1994-1995, the results of which, if known, will be disclosed by Seller to Purchaser prior to Closing. Seller has not extended, or waived the Seller Parties has waived application of, any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax jurisdiction regarding the assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes collection of any Person taxes. There are no tax liens (other than any lien for current taxes not yet due and payable) on any of the Sellers) under Regassets or properties of Seller. ss.1.1502-6 (or Seller has no knowledge of any similar provision basis for any additional assessments of stateany taxes. Seller has made all deposits required by law to be made with respect to employees' withholding and other employment taxes, local, or foreign law), as a transferee or successor, by contract, or otherwiseincluding without limitation the portion of the such deposits relating to taxes imposed upon Seller.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns (a) All federal, state, local and foreign tax returns, reports, statements and other similar filings required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on Litho Companies or before by the Closing Date. Adequate provision has been made in Litho Stockholders with respect to the books and records of each business of the SellersLitho Companies (the "Tax Returns") in connection with any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and other governmental charges or impositions with respect to the extent required by GAAP business of the Litho Companies (including without limitation all income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license, school and any other tax or similar governmental charge or imposition under laws of the United States or any state or municipal or political subdivision thereof or any foreign country or political subdivision thereof) (the "Taxes") have been filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, jurisdictions in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete required to be filed, and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other such Tax Returns of properly reflect the Seller Partiesliabilities for Taxes for the periods, property or events covered thereby. Except as set forth in Section 4.7.1 of All Taxes, including, without limitation, those which are called for by the Sellers Disclosure ScheduleTax Returns, no Governmental Entity has during the past three yearsor heretofore or hereafter claimed to be due by any taxing authority, examined have been properly paid or is accrued in the process Financial Statements including, without limitation, deferred taxes accrued in accordance with Generally Accepted Accounting Principles. Neither Litho Company has received any notice of examining assessment or proposed assessment in connection with any Tax Returns and there are not pending tax examinations of or tax claims asserted with respect to the Litho Companies. There has been no extension or waiver of the Seller Parties application of any statute of limitations of any jurisdiction regarding the assessment or proposed collection of any Taxes. There are no tax liens (tentatively other than any lien for current taxes not yet due and payable) on any of the assets or definitively), asserted or assessed or, to properties of the best Litho Companies. Neither the Litho Stockholders nor the Litho Companies have any knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency additional assessment or claimof any Taxes.
4.7.2 (b) Each of the Sellers Litho Company has withheld and paid all Taxes taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder, or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The (a) Seller Parties and Company have timely filed (or, where permitted or required, its respective direct or indirect parents have caused to be filed or will file or will cause to be filed timely filed) all required Tax Returns required with respect to be filed which Company may have any liability for Taxes and have have, except as set forth on Schedule 2.4, paid all Taxes required to be paid by the Seller Parties due for all periods ending on or before the Closing Datedate hereof with respect to which Company may have any liability. Adequate provision has been made in the books and records of each of the Sellers, Seller and to the extent required by GAAP Company and in the Financial Statements, financial statements referred to in Section 2.3 for all Taxes whether or not due and payable and whether or not disputed. The Neither Seller Parties have prepared all nor Company has elected to be treated as a consenting corporation under Section 341(f) of the Code. Schedule 2.4 lists the date or dates through which the IRS has examined the United States federal income tax returns of Seller. All required Tax Returns, including amendments to date, have been prepared in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure ScheduleSchedule 2.4, no Governmental Entity has has, during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or Company. Except as set forth on Schedule 2.4, no Governmental Entity has proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller PartiesSeller, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for against (1) Seller with respect to which Company may have any such delinquency assessment liability, or claim(2) Company.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as Neither Seller nor Company has made any payments, is obligated to which make any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federalpayments, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code ss.280G.
(ac) Neither Seller nor Company has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or was Seller and the only other member of which was Company) under Sections 1502 and 1504 of the Sellers) or (b) has any Liability for Code and the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 Treasury Regulations thereunder (or any similar provision of state, local, or foreign law), . Company does not have any liability for the Taxes of any Person other than Company as a transferee or successor, successor or by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely Business has filed --------------------------------- or have caused or will be caused to be filed or will file or will cause to be filed in a timely manner (within any applicable extension periods) all Tax Returns required to be have been filed and have paid all Taxes required to be paid by the Seller Parties Internal Revenue Code of 1986, as amended, or by applicable Laws, except for all periods ending those with respect to which the failure to file would not have a material adverse effect on or before the Business after the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and All such filed Tax Returns are or will be complete and accurate in all material respects. Section 4.7.1 of , except where the Sellers Disclosure Schedule lists failure to be so will not have a material adverse effect on the date or dates through which Business after the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesClosing Date. Except as set forth in Section 4.7.1 of the Sellers Disclosure Scheduleon Schedule 4.8, no Governmental Entity has during the past three years, examined or is in the process of examining any (i) all Taxes shown to be due on such Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to ------------ have been withheld and or will be timely paid in connection with amounts paid or owing to any employeefull, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns and no tax liens have been filed. There , (ii) there is no audit examination, asserted deficiency or refund litigation or dispute or claim concerning with a taxing authority with respect to any Tax Liability of any Taxes of the Sellers either Business that might reasonably be expected to result in a determination the effect of which would have a material adverse effect on the Business or each of their operations after the Closing Date, (aiii) claimed or raised by any authority in writing or (b) as to which any all Taxes of the Seller Parties Business due with respect to completed and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that settled examinations or concluded litigation have been audited and/or that currently are paid or adequately reserved for, except where to do so will not have a material adverse effect on the subject Business after the Closing Date, (iv) the Business has not executed a presently effective waiver or extension of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax on the assessment or deficiency.
4.7.5 To the knowledge collection of each of the Seller Partiesany Tax due, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth except where having done so will not have a material adverse effect on the face of Business after the Most Recent Balance Sheet (rather than in any notes thereto) Closing Date, and (bv) do the Business has collected and withheld all material Taxes which they have been required to collect or withhold and have timely submitted all such collected and submitted amounts to the appropriate authorities, except where the failure to have done so will not exceed that reserve as adjusted for have a material adverse effect on the passage of time through Business after the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreementDate. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.As used herein:
Appears in 1 contract
Samples: Asset Purchase Agreement (Speedway Motorsports Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties Company has timely filed or will file all Tax Returns and information returns required to be filed by the Company and has paid or will pay prior to the Closing Date all Taxes due for all periods ended on or before December 31, 1998. The Shareholders have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns and information returns required to be filed by them with respect to the Company and have paid or will pay prior to the Closing Date all Taxes required to be paid by the Seller Parties due for all periods ending ended on or before the Closing DateDecember 31, 1998. Adequate provision has been made in the books and records of each of the Sellers, Company and to the extent required by GAAP in the Financial Statements, Statements for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all Exhibit 5.30
(a) lists the date or dates from and after January 1, 1990 through which any Governmental Authority has examined any Tax Return of the Company. All required Tax Returns, including amendments to date, have been prepared in good faith without gross negligence or willful misrepresentation, misrepresentation and such Tax Returns are complete and accurate and in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure ScheduleExhibit 5.30(b), no Governmental Entity has Authority has, during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or Company. Except as set forth on Exhibit 5.30(c), no Governmental Authority has proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, or threatened to propose or assert, any deficiency, assessment assessment, lien, or other claim for Taxes and there would be no basis for any such delinquency assessment delinquency, assessment, lien or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee. There are no agreements, independent contractor, creditor, shareholder waivers or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible arrangements providing for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any an extension of time with respect to a Tax the assessment of any Taxes or deficiency.
4.7.5 To deficiency against the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance Company or with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party respect to any Tax allocation Return filed or sharing agreementto be filed by the Company. None The Company has properly and timely elected under Section 1362 of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one Code, and under each analogous or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of statestate and local law in each jurisdiction where the Company is required to file a Tax Return, localto be treated as an "S" corporation for all taxable periods since November 1, 1991. With the exception of the Permitted Encumbrances, the Sellers shall promptly cause the discharge of any lien on the Acquired Assets which may arise from a Tax obligation of the Company existing prior to the Closing Date. There has not been any voluntary or foreign law)involuntary termination or revocation of any such election. The copies of the Tax Returns for the tax years ended December 31, as a transferee or successor, 1997 and 1996 provided by contract, or otherwisethe Company to Purchaser are complete and correct.
Appears in 1 contract
Samples: Asset Purchase Agreement (Standard Automotive Corp)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal, state, local and foreign tax returns, reports, statements and other similar filings required to be filed and have paid all Taxes required to be paid by the Seller Parties for Company (the "Tax Returns") with respect to any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and other governmental charges or impositions (including without limitation all periods ending on income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license, school and any other tax or before the Closing Date. Adequate provision has been made in the books and records of each similar governmental charge or imposition under laws of the Sellers, and to United States or any state or municipal or political subdivision thereof or any foreign country or political subdivision thereof) (the extent required by GAAP "Taxes") have been timely filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, jurisdictions in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete required to be filed, and accurate in all material respects. Section 4.7.1 such Tax Returns properly reflect the liabilities of the Sellers Disclosure Schedule lists Company for Taxes for the date periods, property or dates through events covered thereby. All Taxes, including without limitation those which are called for by the IRS Tax Returns, required to be paid, withheld or accrued by the Company and any other Governmental Entity deficiency assessments, penalties and interest have examined been timely paid, withheld or accrued. The accruals for Taxes contained in the United States federal income Balance Sheet are adequate to cover the tax returns and any other Tax Returns liabilities of the Seller PartiesCompany as of that date and include adequate provision for all deferred taxes, and nothing has occurred subsequent to that date to make any of such accruals inadequate. Except as set forth The Company has not received any notice of assessment or proposed assessment in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining connection with any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment are not pending tax examinations of or claim.
4.7.2 Each of tax claims asserted against the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid Company or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of its assets or properties. The Company has not extended, or waived the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federalapplication of, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax jurisdiction regarding the assessment or deficiency.
4.7.5 To collection of any Taxes. There are no tax liens (other than any lien for current taxes not yet due and payable) on any of the assets or properties of the Company. The Company has no knowledge of each any basis for any additional assessment of any Taxes. All tax payments related to employees, including income tax withholding, FICA, FUTA, unemployment and worker's compensation, required to be made by the Seller PartiesCompany have been fully and properly paid, the unpaid Taxes of Sellers (a) did notwithheld, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book accrued or recorded. The Company is not and Tax income) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (b) do has not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is been a party to any Tax tax allocation or sharing agreement. None of the Sellers (a) agreement and is not and has not been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a affiliated group within the common parent meaning of which were one or the other Section 1504 of the Sellers) or (b) has any Liability for the Taxes Internal Revenue Code of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law)1986, as a transferee or successor, by contract, or otherwiseamended (the "Code").
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all (a) All Tax Returns required to be filed by or with respect to the Company have been timely filed or requests for extensions to file such returns have been timely filed, granted and have paid not expired, and all such Tax Returns are complete and correct in all material respects. Schedule 2.4(a) lists all such requests for extensions. Company has paid, or has established reserves for the payment therefor on the Unaudited Interim Balance Sheet, all Taxes required imposed on Company, or for which Company may otherwise be liable, that are due from or with respect to be paid by the Seller Parties it for all periods (or portions thereof) ending on or before the Closing Date. Adequate provision has .
(b) Except as listed in Schedule 2.4(b), (i) the Tax Returns referred to in clause (a) have not been made in examined by the books and records of each IRS or other appropriate Governmental Authority or the period for assessment of the Sellers, and to the extent required by GAAP Taxes in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and respect of which such Tax Returns were required to be filed has expired; (ii) there is no audit, examination, suit, investigation or similar proceeding pending, proposed or threatened with respect to Taxes of Company and no basis exists therefore; and (iii) there are complete no outstanding waivers extending the statutory period of limitation relating to the payment of Taxes due from Company.
(c) Schedule 2.4(c) sets forth the amount of net operating losses, net capital losses, foreign tax credits and accurate investment and other tax credits of the Company as of June 30, 1998 without regard to the limitations imposed by Code sections 382, 383 or 384.
(d) No Closing Agreement pursuant to Section 7121 of the Code or any similar provision of any state, local or foreign law has been entered into by or with respect to Company which could reasonably be expected to have an effect on Company's liability for or reporting of Taxes in any period ending after the Closing Date.
(e) All Taxes which Company has been required by law to withhold or to collect for payment have been duly withheld and collected, and have been paid or accrued, reserved against and added on the books of Company. Company has complied in all material respects. Section 4.7.1 respects with all information reporting and backup withholding requirements, including maintenance of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedulerequired records with respect thereto, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder stockholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax mattersf) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There Company is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability liable for the Taxes of any Person person, including, without limitation, as a transferee, pursuant to Treasury Regulations Section 1.1502-6 or any analogous provision of state, local or foreign law, or as a result of any contractual arrangement with any third party or any taxing authority.
(other than any g) No consent to the application of Section 341(f)(2) of the Sellers) under Reg. ss.1.1502-6 Code (or any similar provision of statestate law provision) has been made or filed by or with respect to Company.
(h) There is no contract or arrangement, local, plan or foreign law), agreement by or with Company covering any person as to which payment or vesting thereunder (including any payment or vesting as a transferee result of the Merger) could result in a nondeductible expense to the Company by reason of Section 280(G) of the Code or successor, by contract, or otherwisean excise tax to the recipient of such payment pursuant to Section 4999 of the Code.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The (a) Seller Parties and Company have timely filed (or, where permitted or required, its respective direct or indirect parents have caused to be filed or will file or will cause to be filed timely filed) all required Tax Returns required with respect to be filed which Company may have any liability for Taxes and have have, except as set forth on Schedule 2.4, paid all Taxes required to be paid by the Seller Parties due for all periods ending on or before the Closing Datedate hereof with respect to which Company may have any liability. Adequate provision has been made in the books and records of each of the Sellers, Seller and to the extent required by GAAP Company and in the Financial Statements, financial statements referred to in Section 2.3 for all Taxes whether or not due and payable and whether or not disputed. The Neither Seller Parties have prepared all nor Company has elected to be treated as a consenting corporation under Section 341(f) of the Code. Schedule 2.4 lists the date or dates through which the IRS has examined the United States federal income tax returns of Seller. All required Tax Returns, including amendments to date, have been prepared in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure ScheduleSchedule 2.4, no Governmental Entity has has, during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or Company. Except as set forth on Schedule 2.4, no Governmental Entity has proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller PartiesSeller, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for against (1) Seller with respect to which Company may have any such delinquency assessment liability, or claim(2) Company.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as Neither Seller nor Company has made any payments, is obligated to which make any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federalpayments, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code Section 280G.
(ac) Neither Seller nor Company has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or was Seller and the only other member of which was Company) under Sections 1502 and 1504 of the Sellers) or (b) has any Liability for Code and the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 Treasury Regulations thereunder (or any similar provision of state, local, or foreign law), . Company does not have any liability for the Taxes of any Person other than Company as a transferee or successor, successor or by contract, or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Inspection Laboratories Inc)
Tax and Other Returns and Reports. 4.7.1 (a) For the purposes of this Agreement, "Tax" or "Taxes" refers to any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, exercise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under agreement or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
(b) The Seller Parties have Company has timely filed or have caused (taking into account applicable extensions) all federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to be filed or will file or will cause to be filed all Tax Returns Taxes required to be have been filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company, and have paid all Taxes required shown to be paid by the Seller Parties for all periods ending due on or before the Closing Date. Adequate provision has been made in the books and records of each such Returns.
(c) The Company as of the SellersEffective Time will have withheld with respect to its employees all federal and state income taxes, and Taxes pursuant to the extent required by GAAP in Federal Insurance Contribution Act ("FICA"), Taxes pursuant to the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Federal Unemployment Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS Act ("FUTA") and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid withheld, in all cases to the extent such amounts are materially individually or in the aggregate.
(d) The Company has not been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company
(e) To the Company's knowledge, no audit or other examination of any Return of the Company by any Tax authority is presently in progress, nor has the Company been notified of any request for such an audit or other examination.
(f) No adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any representative thereof.
(g) The Company does not have any material liability for unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since the date of the Company Balance Sheet in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partythe operation of the business of the Company in the ordinary course.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax mattersh) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute contract, agreement, plan or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as arrangement to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties Company is a party to this Agreement, including, but not limited to, the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Internal Revenue Code of 1986, as amended ("Code").
(i) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(j) The Company is not a party to and has no obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(k) Except as may be required as a result of the Merger, the Company has not been and will not be required to include any material adjustment in Taxable income for any Tax allocation period (or sharing agreement. portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(l) None of the Sellers (aCompany's assets are tax exempt use property within the meaning of Section 168(h) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the SellersCode.
(m) or The Company Disclosure Schedule lists (bi) has any Liability for the Taxes of foreign Tax holidays, (ii) any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, localintercompany transfer pricing agreements, or foreign law)other arrangements that have been established by the Company with any Tax authority, as a transferee and (iii) any expatriate programs or successor, by contract, or otherwisepolicies affecting the Company.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal, state, local and foreign tax returns, reports, statements and other similar filings required to be filed and have paid all Taxes required by Seller with respect to be paid by the Seller Parties for all periods ending on or Business (collectively, the "Tax Returns") before the Closing Date. Adequate provision has been made in the books date hereof with respect to any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and records of each other governmental charges or impositions, (including without limitation all income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license, school and any other tax or similar governmental charge or imposition under laws of the SellersUnited States or any state or municipal or political subdivision thereof or any foreign country or political subdivision thereof) (collectively, and to the extent required by GAAP "Taxes") have been filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, jurisdictions in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete required to be filed, and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other such Tax Returns properly reflect the liabilities of Seller with respect to the Seller PartiesBusiness for Taxes for the periods, property or events covered thereby. Except as set forth in Section 4.7.1 of All Taxes with respect to the Sellers Disclosure ScheduleBusiness, no Governmental Entity has during including without limitation those that are called for by the past three yearsTax Returns, examined or is heretofore or hereafter claimed to be due by any taxing authority from Seller, have been properly accrued or paid. The accruals for Taxes contained in the process Unaudited Balance Sheet are adequate to cover the tax liabilities of examining Seller with respect to the Business as of that date and nothing has occurred after that date to make any of such accruals inadequate. Seller has not received any notice of assessment or proposed assessment in connection with any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be are no basis for any such delinquency assessment pending tax examinations of or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid tax claims asserted against Seller or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed Purchased Assets. Seller has not extended, or raised by any authority in writing or (b) as to which any of waived the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federalapplication of, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes any jurisdiction regarding the assessment or agreed collection of any Taxes. There are no tax Liens (other than Liens for current taxes not yet due and payable) on any of the Purchased Assets. Seller has made all deposits required by law to any extension of time be made with respect to a Tax assessment or deficiencyemployees' withholding and other employment taxes, including without limitation the portion of such deposits relating to taxes imposed upon Seller.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all (a) Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesAudits. Except as set forth in Section 4.7.1 on the Company ---------------------- Schedule:
(i) As of the Sellers Disclosure ScheduleEffective Time, no Governmental Entity has during the past three yearsCompany will have prepared and timely filed all required federal, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed state, local and foreign returns, estimates, information statements and reports, including amendments thereto (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes "Returns") ------- that are required to have been filed before the Effective Time relating to any and all Taxes concerning or attributable to the Company or its operations, including the calculations of net operating losses for purposes of such Returns, and such Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) As of the Effective Time, the Company (A) will have paid all Taxes it is required to pay and will have withheld with respect to its employees, independent contractors and other persons (and paid over to the appropriate taxing authority), all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partythe ordinary course of business.
4.7.3 None (iii) The Company has not been delinquent in the payment of the Seller Parties any Tax, nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning there any Tax Liability deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations on or extending the period for the assessment or collection of any Tax which is still outstanding. There are no powers of attorney with respect to Taxes of the Company currently in respect force. No claim has ever been made by an authority in a jurisdiction where the Company does not file Returns that the Company is or may be subject to taxation by that jurisdiction.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified of any request for such an audit or other examination.
(v) As of the date of the Current Balance Sheet the Company does not have any material liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Current Balance Sheet other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any material Lien on the assets of the Company.
(ix) None of the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any extension disposition of time with respect to a Tax assessment or deficiencysubsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (axi) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do The Company is not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax sharing, indemnification or allocation or sharing agreement nor does the Company owe any amount under any such agreement. None .
(xii) The Company's Tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xiii) The Company is not, and has not been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Sellers Code.
(xiv) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Company's knowledge, informally by any taxing authority to the Company or any representative thereof.
(xv) The Company has (a) has never been a member of an Affiliated Group affiliated group (within the meaning of Code (S)1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or was Company), (b) has any Liability no liability for the Taxes of any Person person (other than Company or any of the Sellersits Subsidiaries) under Treas. Reg. ss.1.1502(S) 1.1502-6 (or any similar provision of state, local, local or foreign law), as a transferee or successor, by contract, or otherwiseotherwise and (c) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xvi) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "Series of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lynuxworks Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 Schedule 3.6:
(a) The Parent has timely prepared all required Returns relating to any and all Taxes concerning or attributable to the Parent or its operations and such Returns will have been timely and correctly filed.
(b) The Parent as of the Sellers Disclosure ScheduleEffective Time: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld with respect to its employees all federal and state income taxes, no Governmental Entity has during the past three yearsFICA, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes FUTA and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all other Taxes required to have be withheld.
(c) The Parent has not been withheld and paid delinquent in connection with amounts paid the payment of any Tax nor is there any Tax deficiency outstanding, proposed or owing to assessed against the Parent, nor has the Parent executed any employee, independent contractor, creditor, shareholder waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax during the five years preceding the Closing Date.
(d) The Parent knows of no audit or other third partyexamination of any Return of the Parent that is currently in progress, nor has the Parent been notified of any request for such an audit or other examination.
4.7.3 None (e) The Parent did not have, as of the Seller Parties nor Parent Financial Statements date, any director or officer (or employee responsible material liabilities for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all unpaid federal, state, local, local and foreign income Tax Returns Taxes which have not been accrued or reserved against in accordance with GAAP on the Parent Financial Statements, whether asserted or unasserted, contingent or otherwise; the Parent has received no written notice that have any such liability has been audited and/or that currently are asserted; and any such liability which has arisen since the subject date of audit. Sellers have delivered the Parent Financial Statements has arisen in the ordinary course of business consistent with past practice.
(f) The Parent has provided to PEI or its designee correct and complete the Company copies of all federal and state income Tax Returnsand all state sales and use tax Returns filed during the four years preceding the Closing Date.
(g) There are (and as of immediately following the Effective Time there will be) no Liens on the assets of the Parent relating to or attributable to Taxes (other than for current taxes not yet due and payable).
(h) The Parent has no knowledge of any basis for the assertion of any material claim relating or attributable to Taxes which, examination reportsif adversely determined, and statements would result in any Lien on the assets of deficiencies assessed against the Parent.
(i) None of the Parent's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(j) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Parent that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(k) The Parent has not filed any consent agreement under Section 341(f) of the Code or agreed to by any have Section 341(f)(2) of the Sellers since their date Code apply to any disposition of incorporationa subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Parent.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (al) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do The Parent is not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to a tax sharing or allocation agreement nor does the Parent owe any Tax allocation or sharing amount under any such agreement. None .
(m) The Parent is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwiseCode.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Electronic Transmission Corp /De/)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed (a) Except as set --------------------------------- forth in Schedule 4.10: (1) all federal Tax Returns required to be filed and by Seller have paid been filed on a timely basis with the appropriate governmental agencies in all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made jurisdictions in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete required to be filed and accurate all Taxes shown as due thereon have been timely paid; (2) all Taxes due from Seller (A) have been fully and timely paid or (B) adequately provided for on the Financial Statements and are being contested in good faith by appropriate proceedings and are not material, individually or in the aggregate, to Seller; (3) Seller will pay in full all material respects. Section 4.7.1 Taxes which are due and payable in respect of any taxable period ending on or prior to the date of the Sellers Disclosure Schedule lists the date Closing whether or dates through which the IRS and not shown on any other Governmental Entity have examined the United States federal income tax returns and any other Tax Return; (4) no claim has been made by an authority in a jurisdiction where Seller does not file Tax Returns of the that may be subject to taxation by that jurisdiction; (5) Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld under all applicable statutes and paid regulations in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder, or other third party.
4.7.3 None party and such withholdings have either been paid to the appropriate governmental agencies as and when due in accordance with Law or set aside in accounts for such purpose; and (6) no waivers of the statutes of limitation have been given by or requested of Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which in connection with its Tax Returns or with respect to any Taxes payable by it. Schedule 4.10 lists all Tax Returns of, or covering, Seller which have been filed. There is examined or which are currently under examination by the Internal Revenue Service or by other appropriate taxing authorities, or with respect to which the applicable statute of limitations (including all extensions and tolling periods) has not yet run and, except as and to the extent shown on such Schedule or provided for on the Financial Statements, all deficiencies asserted or assessments made as a result of such examinations have been fully paid, and there are no dispute other unpaid deficiencies asserted or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised assessments made by any taxing authority in writing or (b) as to which any of the against, Seller. Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee Purchasers correct and complete copies of all federal income Tax ReturnsReturns of Seller or its respective operations or assets filed since June 30, 1994, all examination reportsreports relating to Tax Returns filed by Seller, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of any Taxes or agreed to any extension of time with respect to a Tax assessment or deficiencySeller.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do not exceed Except as set forth in Schedule 4.10, none of the Assets of Seller is (1) "tax-exempt use property" within the meaning of Section 168(h)(1) of the Code, (2) used predominantly outside the United States within the meaning of Prop. Reg. ? 1.168-2(g)(5), (3) "tax-exempt bond financed property" within the meaning of Section 168(g)(5) of the Code, or (4) "limited use property" as that reserve term is used in Rev. Proc. 76-30. Following the Closing, none of the Assets of Seller will be property that Purchasers will be required to treat as adjusted for being owned by any other Person pursuant to the passage provisions of time through Section 168(f)(8) of the Closing Date 1954 Code, as amended and in accordance with effect immediately before the past custom and practice enactment of Sellers in filing their the Tax ReturnsReform Act of 1986.
4.7.6 None (c) Seller is not a foreign person within the meaning of Section 1445 of the Code; Seller Parties is not a party to any Tax allocation or sharing agreement. None of the Sellers (a) agreement or is or has been a member of an Affiliated Group affiliated group filing a consolidated federal income Tax Return or a combined, consolidated or unitary group for state or local tax purposes.
(other than d) With respect to Leased Assets placed in service on or before the date hereof, and except as a group result of acts, errors or omissions, including breaches of representation, by the common parent of which were one or the other lessee thereunder, each of the SellersLease Contracts (excluding property sold on installment sales contracts) will be treated as a "true lease" for federal income tax purposes.
(e) The transactions contemplated by this Agreement are not subject to tax withholding pursuant to the provisions of Section 3406 or Subchapter A of Chapter 3 of the Code or any other provision of applicable law.
(bf) has any Liability for the Taxes There are no liens as a result of any Person (other than unpaid Taxes encumbering any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwiseAssets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Heartland Technology Inc)
Tax and Other Returns and Reports. 4.7.1 (a) The Seller Parties have timely Company has filed or have caused to be filed or will file or will cause to be filed when due (taking into account extensions) with the appropriate Governmental Entities, all Tax Returns and estimates required to be filed by it with respect to Taxes, all of which Tax Returns and have estimates were true, complete and correct as of the time of filing.
(b) The Company has paid when due all Taxes which were due and payable by the Company on or prior to the Closing Date.
(c) The Company has complied with all applicable Laws relating to the withholding of Taxes and has timely withheld from employee wages (or from payments to any other Person if required by applicable Law) and paid over to the proper Governmental Entities all amounts required to be so withheld and paid by the Seller Parties over for all periods ending on under all applicable Laws.
(i) There are no unpaid Taxes assessed or before the Closing Date. Adequate provision has been made asserted in the books and records writing in respect of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of filed by the Seller Parties Company or proposed (tentatively or definitively), asserted or assessed or, otherwise claimed in writing to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised due by any authority Governmental Entity, and (ii) there are no unpaid Taxes assessed or asserted in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of any Tax Returns filed by the common parent of any Affiliated Group or otherwise claimed in writing to be due by any Governmental Entity attributable to the Company, its income, sales, employees, tangible or intangible property or other activities of any nature.
(e) Neither the Company, nor any common parent of any Affiliated Group, has executed or filed with any Governmental Entity any Contract or other document extending, or having the effect of extending, the period of assessment or collection of any Taxes or agreed to which remains in effect. Neither the Company, nor any common parent of any Affiliated Group, has requested any extension of time within which to file any Tax Return, which Tax Return has not been filed within the applicable extension period.
(f) All final adjustments made by the IRS, and all final determinations made by a Governmental Entity, with respect to any federal income Tax Return of the Company (including any Company Tax Return included or filed as a part of any federal income Tax assessment Return filed with other members of an Affiliated Group) have been reported to the relevant state, local or deficiencyforeign Government Entity.
4.7.5 To the knowledge of each (g) The Company has not filed a consent pursuant to Section 341(f) of the Seller Parties, Code or agreed to have Section 341(f)(2) of the unpaid Taxes Code apply to any disposition of Sellers a subsection (af) did notasset (as such term is defined in Section 341(f)(4) of the Code) owned by it. No property of the Company is property that the Company is or will be required to treat as being owned by another Person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Most Recent Fiscal Month End, exceed Code or is "tax-exempt use property" within the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax incomemeaning of Section 168(h)(1) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (b) do Code. The Company is not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None Contract that provides for the payment of any amount that would constitute an "excess parachute payment" within the meaning of Section 280G of the Sellers Code.
(ah) The Company has been not agreed to and is not required to make any adjustment pursuant to Section 481(a) of the Code by reason of a change in accounting method initiated by the Company or required by Law (including the administrative Action of any Government Entity). Neither the Company nor any Seller has any knowledge that the IRS has proposed or purported to require any such adjustment or change in accounting method.
(i) The Company is not a party to, is not bound by, and has no Obligations under, any Tax sharing or similar Contract, nor has any Seller or the Company or any Affiliate of a Seller granted any Person a power of attorney with respect to any matter relating to Taxes of the Company (including Taxes reported as a member of an any Affiliated Group filing a consolidated federal income Tax Return Group) which is currently in force.
(other than a group j) [intentionally omitted.]
(k) Neither the Company, nor any common parent of which were one any Affiliated Group, has executed or the other entered into a closing agreement pursuant to Section 7121 of the Sellers) Code, or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (predecessor provision or any similar provision of stateLaw, localwith respect to Taxes attributable to the Company.
(l) The statute of limitations has not run with respect to any Taxable period of the Company with respect to all Tax Obligations owed to any Governmental Entity.
(m) The Company (i) is not currently being audited with respect to any Tax, (ii) has not received notice from any Governmental Entity that an audit or foreign law)investigation with respect to any Tax is to be initiated, as a transferee (iii) has not made and is not discussing pending ruling requests, technical advice requests or successorother similar items with any Governmental Entity, by contract(iv) is not appealing any audit determination or assessment with respect to any Tax through any administrative appeals process, (v) is not engaged in any litigation with respect to the correctness of any Tax, and (vi) has not been notified of any potential Tax or otherwiseassessment issues which the IRS or any other Governmental Entity intends to raise in connection with any matter concerning the Company.
Appears in 1 contract
Samples: Stock Purchase and Non Compete Agreement (Cable Link Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties Company and each Subsidiary have timely filed or have caused all material Tax Returns required by applicable law to be filed by it prior to or will file or will cause to be filed all Tax Returns required to be filed as of the Closing Date and have paid all Taxes required shown on such Tax Returns to be paid by due. The accrual for Taxes in the Seller Parties Interim Financial Statements for the period ended April 21, 2001 is adequate to cover any and all unpaid Taxes (whether or not disputed and whether or not due) of the Company and the Subsidiaries with respect to all taxable periods (or portions thereof) ending on or before April 21, 2001, and neither the Company nor any Subsidiary has incurred any liability for Taxes subsequent to April 21, 2001 other than in the ordinary course of its business or in connection with transactions contemplated by this Agreement. No Audit by a Taxing Authority is pending or threatened in writing with respect to any material Taxes due from Company or any Subsidiary. Schedule 4.4 lists the date or dates since 1995 through which the Honduran national, provincial or municipal tax authorities and any other Governmental Entity have examined the Honduran Tax Returns of Company and its Subsidiaries. There are no outstanding waivers extending the statutory period of limitation relating to the payment of material Taxes due from Company or any Subsidiary for any taxable period, or any portion of any period, ending prior to the Closing Date which are outstanding as of the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all All required Tax Returns, including amendments to date, have been prepared in good faith without gross negligence or willful misrepresentationmisrepresentation and, and such Tax Returns to the Knowledge of Dole Entities, are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other No Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedulehas, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties Company or any Subsidiary. No Governmental Entity has proposed (tentatively or definitively), asserted or assessed or, to the best knowledge Knowledge of each of the Seller PartiesCompany, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties Taxes. Neither Company nor any director Subsidiary is bound by or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any material agreement related to Taxes other than this Stock Exchange Agreement, including any agreement with any Taxing Authority that can affect a Tax allocation or sharing agreementperiod commencing after the Closing Date. None No power of the Sellers (a) attorney that is currently in force has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one granted by or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (with respect to Company or any similar provision Subsidiary with respect to any matter relating to Taxes. Company and each Subsidiary have previously delivered or made available to SAB or Bevco complete and accurate copies of stateeach of (i) all audit reports, localletter rulings, agreements relating to Taxes due from or foreign law)with respect to Company or any Subsidiary, as a transferee (ii) Tax Returns filed by or successor, filed on behalf of Company and (iii) any closing agreements entered into by contract, Company or otherwiseany Subsidiary with any Taxing Authority in each case existing on the date hereof.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal, state, local and foreign tax returns, reports, statements and other similar filings required to be filed by Seller (the “Tax Returns”) with respect to any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and have paid other governmental charges or impositions, (including without limitation all Taxes required to be paid by the Seller Parties for all periods ending on income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license and any other tax or before the Closing Date. Adequate provision has been made in the books and records of each similar governmental charge or imposition under laws of the Sellers, and to United States or any state of municipal or political subdivision thereof or any foreign country or political subdivision thereof) (the extent required by GAAP “Taxes”) have been filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, jurisdictions in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete required to be filed, and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other such Tax Returns properly reflect the liabilities of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment the periods, property or claim.
4.7.2 Each of events covered thereby. All Taxes, including those without limitation which are called for by the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against have been properly accrued or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations paid. The accruals for Taxes contained in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Balance Sheet (rather than are adequate to cover the tax liabilities of Seller with respect to the Business as of that date and include adequate provision for all deferred taxes, and nothing has occurred subsequent to that date to make any of such accruals inadequate. Seller has not received any notice of assessment or proposed assessment in any notes thereto) and (b) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance connection with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation Returns and there are not pending tax examinations of or sharing agreementtax claims asserted against Seller or any of its assets or properties. None Seller has not extended, or waived the application of, any statute of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes limitations of any Person jurisdiction regarding the assessment or collection of any Taxes. There are no tax liens (other than any lien for current taxes not yet due and payable) on any of the Sellers) under Regassets or properties of Seller. ss.1.1502-6 (or any similar provision Seller has made all deposits required by law to be made with respect to employees’ withholding and other employment taxes, including without limitation the portion of state, local, or foreign law), as a transferee or successor, by contract, or otherwisesuch deposits relating to taxes imposed upon Seller.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed Definition of Taxes. For the purposes of this Agreement, “Tax“or, collectively, ”Taxes,“means any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or have caused measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to be filed such amounts and any obligations under any agreements or will file or will cause arrangements with any other person with respect to be filed all such amounts and including any liability for taxes of a predecessor entity.
(a) Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesAudits. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed on Schedule 2.8:
(tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 i) Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties Holdings and the directors Company has prepared and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists filed all required federal, state, local, local and foreign income Tax returns, estimates, information statements and reports (“Returns”) relating to any and all Taxes concerning or attributable to Holdings or the Company or their respective operations and such Returns that are true and correct and have been audited and/or completed in accordance with applicable law.
(ii) Each of Holdings and the Company: (A) has paid in a timely manner all Taxes shown on its Returns as owing and (B) has withheld with respect to its employees all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld and has paid all such withheld taxes to the proper governmental agencies.
(iii) There is no Tax deficiency outstanding, proposed or assessed against Holdings or the Company, nor has Holdings or the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of Holdings or the Company is currently in progress, nor has Holdings or the Company been notified of any request for such an audit or other examination. Neither Holdings nor the Company is aware of any factual basis upon which an audit or examination could be based that currently are would result in a material assessment.
(v) Neither Holdings nor the subject Company has any liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the Balance Sheet, whether asserted or unasserted, contingent or otherwise.
(vi) Each of audit. Sellers have delivered Holdings and the Company has provided to PEI or its designee correct and complete Parent copies of all federal and state income and all state sales and use Tax ReturnsReturns for all periods since the date of the incorporation.
(vii) There are (and as of immediately following the Effective Time there will be) no liens, examination reportspledges, charges, claims, security interests or other encumbrances of any sort (“Liens”) on the assets of Holdings or the Company relating to or attributable to Taxes except for Liens for Taxes not yet due and statements payable.
(viii) Neither Holdings nor the Company has knowledge of deficiencies assessed against any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of Holdings or the Company.
(ix) None of Holdings or the Company’s assets are treated as “tax-exempt use property” within the meaning of Section 168(h) of the Internal Revenue Code of 1986, as amended (the “Code“).
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Holdings or the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or Section 162 of the Code.
(xi) Neither Holdings nor the Company has filed any consent agreement under Section 341(f) of the Code or agreed to by any have Section 341(f)(2) of the Sellers since their date Code apply to any disposition of incorporationa subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Holdings or the Company. Neither Holdings nor the Company has agreed, nor is it required, to make any adjustment under Section 481 of the Code by reason of a change in accounting method.
4.7.4 None of (xii) Neither Holdings nor the Seller Parties Company has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has ever been a member of an Affiliated Group affiliated group (as defined in Section 1504 of the Code) filing a consolidated federal income Tax Return (or member of any analogous group under applicable local, state or foreign law) other than a group of which Holdings was the common parent of which were one parent. Neither Holdings nor the Company is a party to a tax sharing or allocation agreement nor does Holdings nor the other of Company owe any amount under any such agreement. Neither Holdings nor the Sellers) or (b) Company has any Liability actual or potential liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, local or foreign law), ) or as a transferee successor or successor, by contracttransferee.
(xiii) Neither Holdings nor the Company is, or otherwisehas been at any time, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(xiv) Each of Holdings’ and the Company’s tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on Holdings’tax books and records.
(xv) Neither Holdings nor the Company has constituted either a “distributing corporation“or a “controlled corporation“in a distribution of stock qualifying for a tax-free treatment under Section 355 of the Code (X) in the two years prior to the date of this Agreement or (Y) in a distribution that could otherwise constitute part of a “plan“or “series“of related transactions”(within the meaning of Section 355(e) of the Code) in conjunction with the Acquisition.
(xvi) No power of attorney relating to Taxes has been granted with respect to Holdings or the Company.
(xvii) As of immediately before the Effective Time, there is no limitation with respect to Holdings’or the Company’s net operating losses, built in losses, capital losses, tax credits or similar items under Code Sections 382, 383, 384, or 1502.
(xviii) Each material Tax election with respect to Taxes affecting Holdings or the Company is set forth on Schedule 2.8.
(xix) Holdings has qualified as an S corporation within the meaning of Section 1361 of the Code (and any similar state statute) since the date of its formation and will continue to be an S corporation at all times prior to its acquisition under this Agreement. The Company has qualified as an S corporation from its inception to the date it became a “Qualified Subchapter S Subsidiary (“QSSS”) and has qualified as a QSSS since December 26, 2000 and will continue to be a QSSS at all times prior to the acquisition of Holdings under this Agreement.
(xx) The reorganization of the Company on December 26 , 2000 was intended to qualify and will be reported as a transaction described in Section 368(a)(1)(F) of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cypress Semiconductor Corp /De/)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties (i) Except as set forth in Section 2.7(b)(i) of the Disclosure Letter, (A) the Company and its Subsidiaries have timely filed or all income Tax Returns and all other material Tax Returns that they are required to have caused to be filed or will file or will cause to be filed filed, (B) all Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books Company and records of each of the Sellersits Subsidiaries were true, correct and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 , and (C) the Company and its Subsidiaries have timely paid all Taxes that have become due and payable (whether or not shown on a Tax Return) and have adequately reserved in the Financial Statement in accordance with GAAP for all Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States thereof. No federal income tax returns Tax Return that was filed by the Company or its Subsidiaries contains, or was required to contain (in order to avoid a penalty, and any other determined without regard to the effect of post-filing disclosure), a disclosure statement under Section 6662 of the Code. The Company has provided to Parent, or otherwise made available, copies of all Tax Returns of filed by the Seller PartiesCompany and the Subsidiaries for the past 5 years. . Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters2.7(b)(i) of the Sellers reasonably expects any authority Disclosure Letter, the Company and its Subsidiaries have complied in all material respects with all applicable laws relating to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either intercompany transactions and transfer pricing.
(aii) claimed or raised by any authority Except as set forth in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax mattersSection 2.7(b)(ii) of the Sellers Disclosure Letter, the Company and its Subsidiaries have no present or contingent liability for Taxes, other than Taxes reflected on the Financial Statements or incurred in the ordinary course of business since the date of the Current Balance Sheet in amounts consistent with prior years adjusted to reflect changes in operating results of the Company and its Subsidiaries. Except as set forth in Section 2.7(b)(ii) of the Disclosure Letter, the Company does not know of any basis for the assertion by a taxing authority of a material Tax deficiency against the Company or any Subsidiary.
(iii) Except as set forth in Section 2.7(b)(iii) of the Disclosure Letter, no claim for assessment or collection of Taxes is presently being asserted against the Company or any of its Subsidiaries, there is no presently pending audit, examination, refund claim, litigation, proceeding, proposed adjustment or matter in controversy with respect to any Taxes of or with respect to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has knowledge based upon personal contact with that any agent of such authorityaction or proceeding is being contemplated. Section 4.7.3 2.7(b)(iii) of the Sellers Disclosure Schedule lists Letter sets forth all federal, state, local, and foreign income Tax Returns claims for Taxes that have been audited and/or that currently are asserted against the subject of audit. Sellers have delivered to PEI Company or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time its Subsidiaries with respect to a Tax assessment any period commencing on or deficiency.
4.7.5 To after January 1, 1998. Neither the knowledge Company nor any of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties its Subsidiaries is a party to or bound by any Tax allocation closing or sharing agreement. None other agreement with any Governmental Entity with respect to Taxes.
(iv) Neither the Company nor any of its Subsidiaries is or has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Sellers Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(av) Neither the Company nor any of its Subsidiaries has been a member of an Affiliated Group any affiliated group filing a consolidated federal income Tax Return or a member of a combined, consolidated or unitary group for state, local or foreign Tax purposes (other than a group the common parent of which were one or has at all times been the other of the SellersCompany) or (b) has any Liability liability for the Taxes of any Person other person (other than any an entity that is a member of the Sellersconsolidated group of corporations that has at all times had the Company as its common parent) under Treas. Reg. ss.1.1502§1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
(vi) Neither the Company nor any of its Subsidiaries has agreed to or is required to make any adjustment pursuant to Section 481(a) of the Code by reason of a change in accounting method, and the Company has no knowledge that the Internal Revenue Service has proposed any such adjustment or a change in any accounting method used by the Company or any of its Subsidiaries. The Company and its Subsidiaries use the accrual method of accounting for federal income tax purposes. Neither the Company nor any of its Subsidiaries has taken any action inconsistent with its practices in prior years that would have the effect of deferring a liability for Taxes from a period prior to the Effective Time to a period following the Effective Time.
(vii) None of the assets of the Company or any Subsidiary (A) is “tax-exempt use property” within the meaning of Section 168(h) of the Code, (B) is property which is required to be treated as being owned by any other person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Code; or (C) directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code.
(viii) Section 2.7(b)(viii) of the Disclosure Letter sets forth, with respect to the Company and each of its Subsidiaries, whether such entity is engaged in business, has a permanent establishment (as defined in an applicable tax treaty between the United States and such other jurisdiction) or is otherwise subject to Tax in a jurisdiction other than the United States, and identifies such jurisdiction with respect to each such entity.
(ix) Except as set forth in Section 2.7(b)(ix) of the Disclosure Letter, neither the Company nor any of its Subsidiaries is subject to any waiver or extension of the statute of limitations applicable to the assessment or collection of any Tax. Except as disclosed in Section 2.7(b)(ix) of the Disclosure Letter, no power of attorney or similar grant of authority is in place with respect to the Tax matters of the Company or any of its Subsidiaries.
(x) Neither the Company nor any of its Subsidiaries is a party to any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate, in connection with this Agreement or any change of control of the Company or any of its Subsidiaries, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code.
(xi) Neither the Company nor any of its Subsidiaries has in effect an election under prior Section 341(f) of the Code.
(xii) There are no Tax Liens on any assets of the Company or any of its Subsidiaries, other than Liens for Taxes not yet due and payable.
(xiii) Neither the Company nor any of its Subsidiaries has distributed stock of another person, or has had its stock distributed by another person, in a transaction purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.
(xiv) Except as disclosed in Section 2.7(b)(xiv) of the Disclosure Letter, no shares of Company capital stock are subject to repurchase rights of the Company or other restrictions by the Company.
(xv) Except as set forth in Section 2.7(b)(xv) of the Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposes. Section 2.7(b)(xv) of the Disclosure Letter sets forth all elections pursuant to Treas. Reg. § 301.7701-3 that have been made by business entities in which the Company or any Subsidiary owns an equity interest.
(xvi) Except as set forth in Section 2.7(b)(xvi) of the Disclosure Letter, neither the Company nor any of its Subsidiaries is, has been, or has owned (whether directly or indirectly) an interest in, a passive foreign investment company within the meaning of Section 1297 of the Code. No Subsidiary that is not a United States person (as defined in the Code) (x) has engaged (or been treated as engaged) in the conduct of a trade or business within the United States or (y) has had an investment in “United States property” within the meaning of Section 956(c) of the Code. Neither the Company nor any of its Subsidiaries is, or at any time has been, impacted by (A) the dual consolidated loss provisions of the Section 1503(d) of the Code, (B) the overall foreign loss provisions of Section 904(f) of the Code or (C) the recharacterization provisions of Section 952(c)(2) of the Code.
(xvii) Any amount owed by the Company to any of its current or former stockholders qualifies as indebtedness for federal income tax purposes. No amount owed by the Company to its current or former shareholders has been or will be forgiven, canceled, or contributed to the capital of the Company during the period ending at the Effective Time and beginning with the commencement of negotiations (whether formal or informal) with Company in contemplation of the acquisition of the Company by Parent or in contemplation of the Merger.
(xviii) To the Company’s knowledge, the fair market value of the Non-Operating Assets does not exceed $1,920,000.
(xix) No Subsidiary of the Company is insolvent. Neither the Company nor any Subsidiary has, or will as of the Closing Date have, any deferred gain or loss arising from deferred intercompany transactions, within the meaning of Treasury Regulation Section 1.1502- 13 or 1.1502.13T.
Appears in 1 contract
Samples: Merger Agreement (K2 Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all (a) Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesAudits. Except as set forth in Section 4.7.1 on the Parent ---------------------- Schedule:
(i) As of the Sellers Disclosure ScheduleEffective Time, no Governmental Entity has during the past three yearsParent will have prepared and timely filed all required federal, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed state, local and foreign returns, estimates, information statements and reports, including amendments thereto (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes "Returns") that are required to have been withheld and paid in connection with amounts paid or owing filed before the Effective Time ------- relating to any employeeand all Taxes concerning or attributable to the Parent or its operations, including the calculations of net operating losses for purposes of such Returns, and such Returns are true and correct in all material respects and have been completed in accordance with applicable law.
(ii) As of the Effective Time, the Parent (A) will have paid all Taxes it is required to pay and will have withheld with respect to its employees, independent contractorcontractors and other persons, creditorall federal and state income taxes, shareholder or FICA, FUTA and other third partyTaxes required to be withheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business.
4.7.3 None (iii) The Parent has not been delinquent in the payment of the Seller Parties any Tax, nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning there any Tax Liability deficiency outstanding, assessed or proposed against the Parent, nor has the Parent executed any waiver of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect on or extending the period for the assessment or collection of Taxes or agreed to any extension Tax which is still outstanding. There are no powers of time attorney with respect to Taxes of the Parent currently in force. No claim has ever been made by an authority in a Tax assessment jurisdiction where the Parent does not file Returns that the Parent is or deficiencymay be subject to taxation by that jurisdiction.
4.7.5 To (iv) No audit or other examination of any Return of the Parent is presently in progress, nor has the Parent been notified of any request for such an audit or other examination.
(v) As of the date of the Current Balance Sheet Date, the Parent does not have any material liabilities for unpaid Taxes have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Parent has not incurred any liability for Taxes since the date of the Current Balance Sheet other than in the ordinary course of business.
(vi) The Parent has made available to Company or its legal counsel, copies of all foreign, federal, state and local income and all state and local sales and use Returns for the Parent filed for all periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Parent relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Parent has no knowledge of each any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any material Lien on the assets of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax ReturnsParent.
4.7.6 None of the Seller Parties (ix) The Parent is not a party to any Tax sharing, indemnification or allocation or sharing agreement nor does the Parent owe any amount under any such agreement. None .
(x) The Parent's Tax basis in its assets for purposes of the Sellers (a) has been a member of an Affiliated Group filing a consolidated determining its future amortization, depreciation and other federal income Tax Return deductions is accurately reflected on the Parent 's tax books and records.
(other than xi) The Parent is not, and has not been at any time, a group "United States Real Property Holding Corporation" within the common parent meaning of which were one or the other Section 897(c)(2) of the SellersCode.
(xii) or (b) No adjustment relating to any Return filed by the Parent has been proposed formally or, to the Parent's knowledge, informally by any Liability for taxing authority to the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (Parent or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwiserepresentative thereof.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lynuxworks Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed (a) Definition of Taxes. For the purposes of this Agreement, "Tax" or, ------------------- --- collectively, "Taxes", means any and all federal, state, local and foreign ----- taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or have caused measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to be filed such amounts and any obligations under any agreements or will file or will cause arrangements with any other person with respect to be filed all such amounts and including any liability for taxes of a predecessor entity.
(b) Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesAudits. Except as set forth in Section 4.7.1 Schedule 2.8(b): ----------------------
(i) The Company as of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes Effective Time will have prepared and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid filed all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, locallocal and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes ------- concerning or attributable to the Company or its operations and such Returns are true and correct and have been completed in accordance with applicable law.
(ii) The Company as of the Effective Time: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld with respect to its employees all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld.
(iii) The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company is currently in progress, nor has the Company been notified of any request for such an audit or other examination.
(v) The Company does not have any liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the Balance Sheet, whether asserted or unasserted, contingent or otherwise, and foreign income Tax Returns that have been audited and/or that currently are the subject Company has no knowledge of audit. Sellers have delivered any basis for the assertion of any such liability attributable to PEI the Company, its assets or its designee correct and complete operations.
(vi) The Company has provided to Parent copies of all federal and state income and all state sales and use Tax ReturnsReturns for all periods since the date of Company's incorporation.
(vii) There are (and as of immediately following the Effective Date there will be) no liens, examination reportspledges, and statements charges, claims, security interests or other encumbrances of deficiencies assessed against any sort ("Liens") on the assets of the Company relating ----- to or attributable to Taxes.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company.
(ix) None of the Company's assets are treated as "tax-exempt use -------------- property" within the meaning of Section 168(h) of the Code. --------
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to by any have Section 341(f)(2) of the Sellers since their date Code apply to any disposition of incorporationa subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (axii) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do The Company is not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to a tax sharing or allocation agreement nor does the Company owe any Tax allocation or sharing amount under any such agreement. None .
(xiii) The Company is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Sellers Code.
(axiv) has been a member The Company's tax basis in its assets for purposes of an Affiliated Group filing a consolidated determining its future amortization, depreciation and other federal income Tax Return (other than a group tax deductions is accurately reflected on the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwiseCompany's tax books and records.
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties (a) Tax Returns and Audits. ----------------------
(i) As of the Effective Time, Parent will have prepared and timely filed all material required federal, state, local and foreign Returns, relating to any and all Taxes concerning or attributable to Parent or its operations (including those of its direct and indirect subsidiaries) and such Returns shall be true and correct and have caused to be filed been completed in accordance with applicable law. Notwithstanding the foregoing, no representation or warranty is hereby made regarding the amount or availability of any Tax attribute of Parent.
(ii) As of the Effective Time, Parent or its Subsidiaries, (A) will file have paid or will cause to be filed accrued all Tax Returns Taxes that Parent and any of its Subsidiaries is required to be filed pay or accrue and (B) will have paid withheld with respect to employees of the Parent and any of its Subsidiaries all federal and state income taxes, FICA, FUTA, and other Taxes required to be reported and withheld, and have timely paid by over to the Seller Parties for proper governmental authorities all periods ending amounts required to be withheld and paid over under all applicable laws.
(iii) Parent and its Subsidiaries have not been delinquent in the payment of any Tax nor is there any Tax deficiency outstanding, proposed or assessed against Parent or any of its Subsidiaries, nor has Parent or any of its Subsidiaries executed any waiver of any statute of limitations on or before extended the Closing Dateperiod for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of Parent or any of its Subsidiaries is currently in progress, nor has Parent or any of its Subsidiaries been notified of any request for such an audit or other examination. Adequate provision No adjustment relating to any Return filed by Parent or any of its subsidiaries (and no claim by a tax authority in a jurisdiction in which Parent or any of its subsidiaries does not file returns that Parent or any of its subsidiaries may be subject to taxation by such jurisdiction) has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed formally or, to the best knowledge of each Parent, informally by any tax authority to Parent or any representative thereof.
(v) There are (and as of immediately following the Effective Date there will be) no Liens on the assets of Parent or any of its Subsidiaries relating to or attributable to Taxes other than Liens for taxes not yet due and payable.
(vi) Parent has no reason to believe that the Merger will fail to qualify as a reorganization within the meaning of Section 368(a) of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claimCode.
4.7.2 Each (vii) Merger Sub has been formed in connection with, and solely for the purpose of effectuating, the Sellers withheld Merger. It does not, and paid all Taxes required will not at any time prior to the Effective Time, have been withheld any operations or assets, other than Parent Common Stock and paid cash (in lieu of fractional shares) that will be issued to the Company's stockholders in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partythe Merger.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ibeam Broadcasting Corp)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal state, local and foreign tax returns, reports, statement and other similar filings required to be filed by Selling Parties (the "Tax Returns") with respect to any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and have paid other governmental charges or impositions, including without limitation all Taxes required to be paid by the Seller Parties for all periods ending on income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license, school and any other tax or before the Closing Date. Adequate provision has been made in the books and records of each similar governmental charge or imposition under laws of the Sellers, and to United States or any state or municipal or political subdivision thereof or any foreign country or political subdivision thereof) (the extent required by GAAP "Taxes") have been filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and jurisdictions win which such Tax Returns are complete required to be filed, and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other such Tax Returns properly reflect the liabilities of Seller for Taxes for the Seller Partiesperiods, property or events covered thereby. Except as set forth in Section 4.7.1 of All Taxes, including without limitation those which are called for by the Sellers Disclosure ScheduleTax Return, no Governmental Entity has during the past three yearsor heretofore or hereafter claimed to be due by any taxing authority for Seller, examined have been properly accrued or is paid. The accruals for Taxes contained in the process Financial Statements are adequate to cover the tax liabilities of examining Seller with respect to the Business as the Effective Date and include adequate provision for all deferred taxes, and nothing has occurred subsequent to the Effective Date to make any of such accruals inadequate. Neither Seller nor Northland has received any notice of assessment or proposed assessment in connection with any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment are not pending tax examinations of or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid tax claims asserted against Seller or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of its assets or properties. Seller has not extended, or waived the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federalapplication of, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax jurisdiction regarding the assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes collection of any Person Taxes. There are no tax liens (other than any lien for current taxes not yet due and payable) on any of the Sellers) under Regassets or properties of Seller. ss.1.1502-6 (or Seller has no knowledge of any similar provision basis for any additional assessment of stateany Taxes. Seller has made all deposits required by law to be made with respect to employees' withholding and other employment taxes, local, or foreign law), as a transferee or successor, by contract, or otherwiseincluding without limitation the portion of such deposits relating to taxes imposed upon Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diagnostic Retrieval Systems Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties (a) Company has at all times since July 1, 1997, been, for federal and state income tax purposes, classified as an S corporation for purposes of Code Sections 1361 – 1379 and corresponding provisions of applicable state law. Company and each Subsidiary have timely filed or have caused to be filed or will file or will cause to be filed all required material Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties due for all periods ending Pre-Closing Tax Periods as shown on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required those Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and . All such Tax Returns are were correct and complete and accurate in all material respects. Adequate reserves or accruals have been provided in the books of Company and each Subsidiary and in their financial statements referred to in Section 4.7.1 of the Sellers Disclosure 2.3 above, in accordance with GAAP, for all Taxes with respect to any period for which Tax Returns have not been filed, or for which Taxes are not yet due and owing. Schedule 2.4 lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and or any other material Tax Returns of the Seller PartiesCompany and its Subsidiaries. Except as set forth All required material Tax Returns, including amendments to date, have been prepared in Section 4.7.1 of the Sellers Disclosure Schedule, no good faith without negligence or misrepresentation and are complete and accurate in all respects. No Governmental Entity has examined during the past three years, examined or nor is in the process of examining any Tax Returns of Company or any Subsidiary.
(b) Neither Company nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated Tax Return (other than a group the Seller Parties parent of which was Company). Neither Company nor any of its Subsidiaries has any Liability for Taxes of any Person (other than Company or proposed any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (tentatively or definitivelyany similar provision of state, local or foreign law), asserted as a transferee or assessed orsuccessor, by contract, or otherwise. Neither the Company nor any of its Subsidiaries will be required to include any item or income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of: (A) intercompany transactions within the meaning of Section 1.1502-13 of the Treasury Regulations (or any corresponding or similar provision of state, local or foreign Tax Law); (B) installment sales made on or before the Closing Date; (C) dispositions of property made on or before the Closing Date for a contingent purchase price the fair market value of which could not be ascertained at the time of the dispositions; or (D) prepaid amounts received on or prior to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claimClosing Date.
4.7.2 (c) Each of the Sellers Company and its Subsidiaries has withheld and paid paid, or will withhold and pay (as applicable), all Taxes required to have been withheld and paid on or before the Closing Date hereof in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder shareholder, foreign person, or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax mattersd) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute threatened or claim concerning pending action or proceeding with any Tax Liability Governmental Entity for the assessment or collection of any of the Sellers Taxes, against either (a) claimed Company or raised by any authority in writing or (b) Subsidiary, as to which Company has received written notice or has Knowledge, nor are there any of audits or investigations by any taxing authority or proceedings in progress, nor has the Company or any Subsidiary received any written notice from any taxing authority that it intends to conduct such an audit or investigation. The Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign original or amended income Tax Returns filed with respect to Company or any of its Subsidiaries on or after January 1, 2003, indicates those Company Tax Returns that have been audited and/or audited, and indicates those Company Tax Returns that currently are the subject of audit. Sellers have delivered Seller has made available to PEI or its designee correct and Buyer complete copies of all federal income portions of Tax Returns, Returns and examination reportsreports which pertain to Company and its Subsidiaries, and statements of deficiencies assessed against or agreed to by any of the Sellers Company and its Subsidiaries since their date of incorporationDecember 31, 2003.
4.7.4 None (e) Neither Company nor any of the Seller Parties its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiencydeficiency which waiver or agreement is currently in effect.
4.7.5 To the knowledge (f) No power of each attorney has been granted by Company or any of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than its Subsidiaries with respect to any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Balance Sheet (rather than tax matter which is currently in any notes thereto) and (b) 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 Sellers in filing their Tax Returnsforce.
4.7.6 None (g) Neither Company nor any of the Seller Parties its Subsidiaries (i) has made any payments, (ii) is obligated to make any payments, or (iii) is a party to any Tax allocation agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code Section 280G.
(h) There are no tax sharing, allocation, indemnification or sharing agreement. None similar agreements or arrangements in effect between Company or any of its Subsidiaries, or any predecessor or affiliate thereof, and any other party under which Company or any of its Subsidiaries could be liable for any Taxes or other claims of any party.
(i) Neither Company nor any of its Subsidiaries has applied for, been granted, or agreed in writing to any accounting method change for which it will be required to take into account any adjustment under Section 481 of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (Code or any similar provision of the Code or the corresponding tax laws of any nation, state or locality.
(j) Neither Company nor any Subsidiary is liable with respect to any purported indebtedness the interest of which is not deductible for applicable federal, state, local, local or foreign law), income Tax purposes.
(k) Neither Company nor any Subsidiary has engaged in any “reportable transaction” as defined in the Treasury Regulations promulgated under Section 6011 of the Code.
(l) Company and its Subsidiaries have disclosed on their Tax Returns all positions taken that could reasonably be expected to give rise to a transferee or successor, by contract, or otherwisematerial understatement of federal income Tax within the meaning of Section 6662 of the Code.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties Each of the Company and ARA has timely filed or will file (or, where permitted or required, its respective direct or indirect parents have timely filed or have caused to be filed or will file or will cause to be filed file) all material Tax Returns required to be filed and have paid (or will pay) all Taxes required to be paid by the Seller Parties shown thereon as owing for all taxable periods ending on or before the Closing Date (a "Pre-Closing Period"). As of the Closing Date, each of the Company and ARA shall have made payments of estimated taxes as required by Law (taking into account the tax effects of the transactions contemplated hereby) for (i) the pre-closing portion of the Straddle Period (as defined in and determined under Section 4.8(a)), and (ii) taxable periods ending on or prior to the Closing Date but for which a Tax Return is not yet due. Adequate provision has accruals and reserves have been made provided in the books and records of each of the SellersCompany and ARA, and and, to the extent required by GAAP in the Audited Financial StatementsStatements referred to in Section 3.2(c) above or delivered or to be delivered to Buyer, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments Neither the Company nor ARA has elected to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respectsbe treated as a consenting corporation under Section 341(f) of the Code. Section 4.7.1 3.2G of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns Tax Returns and any other Tax Returns of the Seller PartiesCompany and ARA. All required Tax Returns, including amendments to date, have been prepared in good faith and are complete and accurate in all material respects. Except as set forth in on Section 4.7.1 3.2H of the Sellers Disclosure Schedule, there are no deficiencies for Taxes claimed or proposed by any Governmental Entity has during the past three years, examined Entities that have not yet been fully paid or is in the process of examining any Tax Returns settled. Except as set forth on Section 3.2H of the Seller Parties Disclosure Schedule, there are no pending audits relating to Taxes of the Company or proposed (tentatively or definitively), asserted or assessed ARA or, to the best knowledge of each of the Seller PartiesCompany's knowledge, threatened material audits or investigations relating to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid Company or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of ARA. Neither the Seller Parties Company nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties ARA has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To . Neither the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties Company nor ARA is a party to any Tax allocation or sharing agreement. None of Neither the Sellers (a) Company nor ARA has been a member of an Affiliated Group filing a consolidated federal income or a combined or unitary State or Local Tax Return (other than a group the common parent of which were one was the Company or the other of the Sellers) or (b) has any Liability Certified Holding Corporation, a Delaware corporation). There are no liens for the Taxes of any Person (other than any for current Taxes not yet due and payable) on the assets of the SellersCompany or ARA. None of the assets of the Company or ARA (i) directly or indirectly secures any debt the interest on which is tax exempt, (ii) is property that is required to be treated as being owned by any other person under Reg. ss.1.1502-6 (or any similar provision of state, localthe applicable tax law, or foreign law)(iii) is "tax-exempt use property" for federal income tax purposes. Neither the Company nor ARA has agreed to make or is required to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise. Neither the Company nor ARA is obligated to make, as a transferee or successorresult of an event connected with the transaction contemplated by this Agreement, by contract, or otherwiseany "excess parachute payment" as defined in Section 280G of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Adams Rite Aerospace Inc)
Tax and Other Returns and Reports. 4.7.1 (a) The Seller Parties Sellers and the Company have timely filed or have caused to be filed or will file or will cause to be filed with the appropriate taxing authorities all Tax Returns returns (including, without limitation, information returns and other material information) in respect of Taxes required to be filed and have paid through the date hereof. At the time they were filed, all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are returns were complete and accurate in all material respects. For purposes of this Section 4.7.1 3.7, the term the “Company” shall be deemed to include any predecessor of the Sellers Disclosure Schedule lists the date Company or dates through any persons or entity from which the IRS Company incurs a liability for Taxes as a result of transferee liability. Neither the Sellers, the Company nor any group of which the Sellers or the Company are now or were a member has requested any extension of time within which to file returns (including, without limitation, information returns) in respect of any Taxes.
(b) All Taxes, in respect of periods beginning before the Closing Date, have been paid, or an adequate reserve has been established therefor, and neither the Sellers nor the Company has any Liability for Taxes in excess of the amounts so paid or reserves so established.
(c) No material deficiencies for Taxes have been claimed, proposed or assessed by any taxing or other Governmental Entity Authority, which deficiencies have examined the United States federal income tax returns and any other Tax Returns of the Seller Partiesnot been paid. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, There are no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed pending or, to the best knowledge of each of the Seller PartiesSellers’ Knowledge, threatened audits, investigations or claims for or relating to propose or assertany liability in respect of Taxes, any deficiency, assessment or claim for Taxes and there would be are no basis for matters under discussion with any such delinquency assessment or claim.
4.7.2 Each Governmental Authorities with respect to Taxes that, in the reasonable judgment of the Sellers or the Shareholders is likely to result in an obligation by the Sellers, the Company or LSI to pay any additional amount of Taxes. The Sellers have not received written notice that any taxing authority intends to audit a return for any period. No extension of a statute of limitations relating to Taxes is in effect with respect to any Seller or the Company.
(d) Each Seller and the Company have withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder shareholder, or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties Company and each of its Subsidiaries have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns required to be filed by them and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate made adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputedfrom them by any Governmental Entity. The Seller Parties have prepared all required Neither the Company nor any of its Subsidiaries has elected to be treated as a consenting corporation under Section 341(f) of the Code. All such Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of respects and have been filed in the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Partiesmanner required by applicable law. Except as set forth in Section 4.7.1 of the Sellers Disclosure ScheduleSchedule 4.15, (i) no Governmental Entity has during the past three years, years has examined or is in the process of examining or has notified the Company or any of its Subsidiaries in writing of an intention to examine any Tax Returns of the Seller Parties Company or any of its Subsidiaries; (ii) no Governmental Entity has proposed (tentatively against the Company or definitively), asserted or assessed or, to the best knowledge any of each of the Seller Parties, threatened to propose or assert, its Subsidiaries any deficiency, assessment assessment, or claim for Taxes Taxes; (iii) the statute of limitations for all federal, Massachusetts state, California state, New Jersey state, and there would be no basis for any Ohio state income Tax Returns have expired or all such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is examined by the appropriate Governmental Entity for all taxable periods; (iv) there are no dispute liens for Taxes upon any assets of the Company or claim concerning any Tax Liability of any of its Subsidiaries other than statutory liens for Taxes not yet delinquent; (v) no power of attorney has been executed by the Sellers either (a) claimed Company or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time Subsidiaries with respect to a Tax assessment any matter relating to Taxes that is currently in force; (vi) neither the Company nor any of its Subsidiaries is party to any agreement, contract, or deficiency.
4.7.5 To other arrangement that would result, separately or in the knowledge aggregate, in the requirement to make any excess parachute payment within the meaning of each Section 280G of the Seller Parties, Code; (vii) neither the unpaid Taxes Company nor any of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties its Subsidiaries is a party to any Tax allocation sharing agreement or sharing agreement. None arrangement; and (viii) all Taxes that the Company and its Subsidiaries are re quired by law to withhold or collect for payment have been duly withheld and collected and have been paid or accrued, reserved against, and entered on the books of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwiseCompany and its Subsidiaries.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (HCC Industries International)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns All federal, state, local and foreign tax returns, reports, statements and other similar filings required to be filed by Seller (the "Tax Returns") with respect to any federal, state, local or foreign taxes, assessments, interest, penalties, deficiencies, fees and have paid other governmental charges or impositions, (including without limitation all Taxes required to be paid by the Seller Parties for all periods ending on income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license, school and any other tax or before the Closing Date. Adequate provision has been made in the books and records of each similar governmental charge or imposition under laws of the Sellers, and to United States or any state or municipal or political subdivision thereof or any foreign country or political subdivision thereof) (the extent required by GAAP "Taxes") have been filed with the appropriate governmental agencies in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, jurisdictions in good faith without gross negligence or willful misrepresentation, and which such Tax Returns are complete required to be filed, and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other such Tax Returns properly reflect the liabilities of Seller for Taxes for the Seller Partiesperiods, property or events covered thereby. Except as set forth in Section 4.7.1 of All Taxes, including those without limitation which are called for the Sellers Disclosure ScheduleTax Returns, no Governmental Entity has during the past three yearsor heretofore or hereafter claimed to by any taxing authority from Seller, examined have been properly accrued or is paid. The accruals for Taxes contained in the process Interim Balance Sheet are adequate to cover the tax liabilities of examining Seller with respect to the Business as of that date and include adequate provision for all deferred taxes, and nothing has occurred subsequent to that date to make any of such accruals inadequate. Seller has not received any notice of assessment or proposed assessment in connection with any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment are not pending tax examinations of or claim.
4.7.2 Each tax claims asserted against Seller of its assets or properties. Seller has not extended, or waived the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employeeapplication of, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax jurisdiction regarding the assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes collection of any Person Taxes. There are no tax liens (other than any lien for current taxes not yet due and payable) or properties of Seller. Seller has no knowledge of any basis for any additional assessment of any Taxes. Seller has made all deposits required by law to be made with respect to employees' withholding and other employment taxes, including without limitation the Sellers) under Reg. ss.1.1502-6 (or any similar provision portion of state, local, or foreign law), as a transferee or successor, by contract, or otherwisesuch deposits relating to taxes imposed upon Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Equalnet Communications Corp)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all (a) Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller PartiesAudits. Except as set forth in Section 4.7.1 Schedule 3.8:
(i) eGroups as of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined Effective Time will have prepared and filed all required Returns relating to any and all Taxes concerning or is attributable to eGroups or its operations and such Returns are true and correct in the process of examining any Tax Returns all material respects and have been completed in accordance with applicable law.
(ii) eGroups as of the Seller Parties Effective Time: (A) will have paid or proposed (tentatively accrued on the eGroups Interim Financials all Taxes it is required to pay or definitively), asserted or assessed or, which are attributable to the best knowledge of each of the Seller Partiesperiod ending September 30, threatened 1999 and (B) will have withheld with respect to propose or assertits employees all federal and state income taxes, any deficiencyFICA, assessment or claim for Taxes FUTA and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all other Taxes required to have be withheld.
(iii) eGroups has not been withheld and paid delinquent in connection with amounts paid the payment of any Tax nor is there any Tax deficiency outstanding, assessed, or owing to its Knowledge proposed against eGroups, nor has eGroups executed any employee, independent contractor, creditor, shareholder waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other third partyexamination of any Return of eGroups is currently in progress, nor has eGroups been notified of any request for such an audit or other examination.
4.7.3 None of the Seller Parties nor (v) eGroups does not have any director or officer (or employee responsible liabilities for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all unpaid federal, state, locallocal and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the eGroups Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and foreign income Tax Returns that have been audited and/or that currently are eGroups has no Knowledge of any basis for the subject assertion of audit. Sellers have delivered any such liability attributable to PEI ONElist, its assets or its designee correct and complete operations.
(vi) eGroups has provided to ONElist copies of all federal and state income and all state sales and use Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of Returns for all periods since the Sellers since their date of eGroups' incorporation.
4.7.4 None (vii) There are (and as of immediately following the Seller Parties has waived any statute Effective Date there will be) no Liens on the assets of limitations in respect of Taxes eGroups relating to or agreed attributable to any extension of time with respect to a Tax assessment or deficiencyTaxes.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (aviii) did notExcept as set forth in Schedule 3.8(a)(viii), as of the Most Recent Fiscal Month EndEffective Time, exceed there will not be any contract, agreement, plan or arrangement, excluding any arrangement to which ONElist or any of its employees are a party, covering any employee or former employee of eGroups that, individually or collectively, could give rise to the reserve for Tax Liability (rather than payment of any reserve for deferred Taxes established amount that would not be deductible pursuant to reflect timing differences between book and Tax incomeSection 280G, 404 or 162(m) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (b) do not exceed that reserve Code as adjusted for a result of the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax ReturnsMerger.
4.7.6 None (ix) eGroups has not filed any consent agreement under Section 341(f) of the Seller Parties Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by eGroups.
(x) eGroups is not a party to a tax sharing or allocation agreement nor does eGroups owe any amount under any such agreement.
(xi) eGroups is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xii) Except as may be required as a result of the Merger, eGroups has not been and will not be required to include any adjustment in taxable income for any Tax allocation period (or sharing agreement. None portion thereof) pursuant to Section 481 or Section 263A of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (Code or any similar comparable provision of state, local, under state or foreign law), Tax laws as a transferee result of transactions, events or successoraccounting methods employed prior to the Closing.
(xiii) Since September 30, by contract1999, or otherwiseno Taxes have been incurred except in the ordinary course of business.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have a. Since November 1, 2000, each of the Poco Companies has filed, or has had filed on its behalf, in a timely filed or have caused to be filed or will file or will cause to be filed manner (within any applicable extension periods) with the appropriate Taxing Authority all Tax Returns required to be filed and have paid under applicable Laws, and, all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are have been prepared in accordance with applicable Law and were correct and complete and accurate in all material respects. Section 4.7.1 Since November 1, 2000, no claim has been made by a Taxing Authority in writing in a jurisdiction in which Holdings, the Company or any Subsidiary does not currently file a Tax Return that Holdings, the Company or any Subsidiary is or may be subject to taxation by that jurisdiction.
b. Since November 1, 2000, all Taxes due and payable by or with respect to the Poco Companies (whether or not shown on any Tax Return) have been paid in full. All amounts of Taxes required to be withheld by any of the Sellers Disclosure Schedule lists Poco Companies have been withheld and have been duly and timely paid to the date proper Taxing Authority, and each of the Poco Companies has complied with all reporting and recordkeeping requirements.
c. Since November 1, 2000, there are no outstanding (i) agreements or dates through which waivers extending the IRS and statutory period of limitations applicable to any federal, state, local or foreign income, franchise or other Governmental Entity Tax Returns required to be filed, (ii) extensions for the assessment or collection of Taxes that have not since been paid, or (iii) powers of attorney that are currently in force with respect to any Tax matter, in each case by or with respect to the Poco Companies.
d. None of the Tax Returns of or, with respect to any of the Poco Companies is currently being audited or examined by any Taxing Authority. Holdings has no Knowledge, nor has any of the United States federal income tax returns and Poco Companies received any written notice, that any Taxing Authority intends to conduct an audit or investigation relating to the Tax Returns of any of the Poco Companies or that any other Tax Returns Proceedings with respect to any of the Seller PartiesPoco Companies are pending or being conducted. Except as set forth in Section 4.7.1 Since November 1, 2000, none of the Sellers Disclosure SchedulePoco Companies have received from any foreign, no Governmental Entity has during federal, state or local Taxing Authority (including jurisdictions where the past three yearsPoco Companies have not filed Tax Returns) any (i) written request for information related to Tax matters, examined or is in the process (ii) notice of examining any Tax Returns of the Seller Parties deficiency or proposed (tentatively or definitively)adjustment for any amount of Tax proposed, asserted or assessed orby any Taxing Authority against the Poco Companies. The consolidated federal income Tax Returns of Holdings for taxable periods ended on or before December 31, 2002, have been examined by the relevant Taxing Authority or the relevant statute of limitations has expired.
e. No deficiency for any Taxes has been assessed with respect to the best knowledge of each Tax Returns filed by or that include any of the Seller Parties, threatened to propose Poco Companies that has not been abated or assert, paid in full or adequately provided for on the Company Latest Balance Sheet. There are no Encumbrances other than Permitted Liens as a result of any deficiency, assessment or claim for unpaid Taxes and there would be no basis for upon any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability assets of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any Poco Companies.
f. Schedule 5.13 of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Company Disclosure Schedule lists all federal, state, local, local and foreign income Tax Returns filed with respect to any of the Poco Companies for taxable periods ended on or after December 31, 2003 and indicates those Tax Returns that have been audited and/or that currently are the subject of auditaudited. Sellers have Holdings has delivered to PEI or its designee the Parent correct and complete copies of all federal income Tax Returns and other material Tax Returns, examination reports, reports and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller PartiesPoco Companies that were filed or received since November 1, 2000.
g. At all times since its formation, Holdings has (i) had a valid election under Treasury Regulation Section 301.7701-3(c) to be treated as an association taxable as a corporation for federal income tax purposes, (ii) properly elected to be treated as the common parent of an affiliated group filing a consolidated federal income Tax Return, and (iii) where permitted, properly elected to file consolidated, combined or unitary Tax Returns for applicable state income and franchise tax purposes.
h. The unpaid Taxes of Sellers the Poco Companies (ai) did not, as of the Most Recent Fiscal Month EndDecember 31, 2007, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Company Latest Balance Sheet (rather than in any notes thereto) and (bii) 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 Sellers the Poco Companies in filing their Tax Returns. Since December 31, 2007, none of the Poco Companies has incurred any liability for Taxes arising from extraordinary gains and losses outside the Ordinary Course of Business.
4.7.6 None i. Each of the Seller Parties Poco Companies (i) is a party to any Tax allocation or sharing agreement. None of the Sellers (a) not and has never been a member of any affiliated group that filed or was required to file an Affiliated Group filing a consolidated federal income affiliated, consolidated, combined or unitary Tax Return (other than a group of which Holdings is the common parent of which were one or the other of the Sellers) or parent), (bii) has any Liability no liability for the Taxes of any another Person (other than any of the Sellers) as transferee, successor or by contract or otherwise or under Reg. ss.1.1502Treasury Regulation Section 1.1502-6 (or any similar comparable provision of state, local, local or foreign lawLaw) or (iii) is not a party to any Tax allocation, sharing, indemnity or similar arrangement or agreement (whether or not written), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Entegris Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed Except as set forth in Exhibit 8.10:
(a) All federal, state, local and foreign tax returns and tax reports (or have caused to be filed or will file or will cause to be filed all Tax Returns extensions relating thereto) required to be filed by Borrower or any Subsidiary have been filed on a timely basis with the appropriate governmental agencies in all jurisdictions in which such returns and have paid all Taxes reports are required to be filed, and all such returns and reports were true and correct in all material respects when filed;
(b) All federal, state, local and foreign income, profits, franchise, sales, use, premium, occupancy, property, severance, excise, withholding, value added and other taxes (including interest and penalties) due from Borrower or any Subsidiary (A) have been fully and timely paid by or adequately provided for on the Seller Parties for all periods ending Financial Statements or on or before the Closing Date. Adequate provision has been made in the books and records of each of the SellersBorrower or its Subsidiaries, and to the extent required by GAAP in the Financial Statementsas appropriate, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 , or (B) are being contested in good faith by appropriate proceedings and are not material, individually or in the aggregate, to Borrower or any Subsidiary;
(c) No material issues have been raised with a representative or employee of Borrower or any Subsidiary (and are currently pending) by the Internal Revenue Service or any other taxing authority in connection with any of the Sellers Disclosure Schedule lists returns and reports referred to in the date foregoing clause (i) or dates through which the IRS and otherwise;
(d) No waivers of statutes of limitation have been given or requested with respect to Borrower or any other Governmental Entity have examined the United States Subsidiary in connection with any tax returns covering Borrower or any Subsidiary or with respect to any taxes payable by Borrower or any Subsidiary; and
(e) All federal income tax returns of, or covering Borrower or any Subsidiary have been examined by the appropriate taxing authority through December 31, 2005 and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), all deficiencies asserted or assessed orassessments made as a result of such examinations have been fully paid, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be are no basis for any such delinquency assessment other unpaid deficiencies asserted or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised assessments made by any taxing authority in writing against Borrower or (b) as to any Subsidiary, except for items which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do not exceed that reserve as adjusted for $75,000 individually or in the passage of time through the Closing Date in accordance with the past custom and practice of Sellers in filing their Tax Returnsaggregate.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be filed all Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 --------------------------------- Schedule 3.14:
(i) The Parent as of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes Effective Time will have prepared and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid filed all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, locallocal and foreign returns, estimates, information statements and reports ("Returns") otherwise due ------- relating to any and all Taxes concerning or attributable to the Company or its operations, and foreign income Tax such Returns that have been audited and/or that currently are completed in accordance with applicable law.
(ii) The Parent as of the subject of audit. Sellers Effective Time: (A) will have delivered paid or accrued all Taxes it is required to PEI pay or accrue and (B) will have withheld with respect to its designee correct and complete copies of employees all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld.
(iii) The Parent is not currently delinquent in the payment of any Tax Returnsand has not been delinquent in the payment of any Tax during the three (3) years preceding the date of this Agreement nor is there any Tax deficiency outstanding, examination reports, and statements of deficiencies proposed or assessed against or agreed to by the Company, nor has the Company executed any waiver of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes on or agreed to any extension of time with respect to a Tax extending the period for the assessment or deficiencycollection of any Tax.
4.7.5 To the knowledge (iv) No audit or other examination of each any Return of the Seller PartiesParent is presently in progress, nor has the Company been notified of any request for such an audit or other examination.
(v) The Parent does not have any liabilities for unpaid federal, state, local and foreign Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) do which have not exceed that reserve as adjusted for the passage of time through the Closing Date been accrued or reserved against in accordance with GAAP on the past custom Parent Financial Statements, whether asserted or unasserted, contingent or otherwise, and practice the Company has no knowledge of Sellers in filing their Tax Returnsany basis for the assertion of any such liability attributable to the Company, its assets or operations.
4.7.6 (vi) There are (and as of immediately following the Closing there will be) no Liens, on the assets of the Parent relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable.
(vii) None of the Seller Parties Parent's assets is treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(viii) The Parent is not a party to a tax sharing or allocation agreement nor does the Parent owe any Tax allocation or sharing amount under any such agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Level 8 Systems)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed To Seller's knowledge and belief, except as disclosed on SCHEDULE 3.13 hereto, (a) all federal, state and local tax returns, reports and statements (including all income tax, unemployment compensation, social security, payroll, sales and use, excise, privilege, property, ad valorem, franchise, license, school and any other tax under laws of the United States or have caused to be filed any state or will file municipal or will cause to be filed all Tax Returns political subdivision thereof) required to be filed by Seller in connection with the Business (the "Tax Returns") have been filed with the appropriate governmental agencies in all jurisdictions in which such returns, reports and have paid all Taxes statements are required to be paid by filed, and all such returns, reports and statements properly reflect the tax liabilities of Seller Parties in relation to the Business for the periods, properties or events covered thereby; (b) all periods ending on federal, state and local taxes, assessments, interest, penalties, deficiencies, fees and other governmental charges or before the Closing Date. Adequate provision has been made impositions, including those enumerated above in the books and records of each respect of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments which are called for by the Tax Returns, or claimed to datebe due by any taxing authority from Seller, in good faith without gross negligence or willful misrepresentationupon or measured by Seller's properties, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 assets or income (the "Taxes"), have been properly accrued or paid; (c) Seller has not received any notice of assessment or proposed assessment by the Sellers Disclosure Schedule lists the date Internal Revenue Service or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth taxing authority in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining connection with any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be are no basis for any such delinquency assessment pending tax examinations of or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid tax claims asserted against Seller or owing to any employee, independent contractor, creditor, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either its assets or properties; (ad) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently there are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person no tax liens (other than any lien for current taxes not yet due and payable) on any of the SellersAssets; (e) under Reg. ss.1.1502-6 Seller has no knowledge of any basis for any additional assessment of any Taxes in relation to the Business; and (or any similar provision of state, local, or foreign law), as a transferee or successor, f) Seller has made all deposits required by contract, or otherwiselaw to be made with respect to employees' withholding taxes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Rankin Automotive Group Inc)
Tax and Other Returns and Reports. 4.7.1 The (a) Seller Parties have timely filed or have caused to be has (i) filed or will file or will cause to be filed (taking into account valid extensions) all federal, state, and all other material Tax Returns required to be filed and have paid all Taxes required to be paid by the Seller Parties for all periods ending it on or before prior to the Closing Date and (ii) paid (or accrued) all material Taxes shown as due pursuant to such Tax Returns. To the knowledge of Seller, there are no outstanding assessments or taxes otherwise due that if not paid on a timely basis would result, on or after the Closing Date. Adequate provision has been made , in the books and records of each any liens for taxes on any of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputedAcquired Assets. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, There is no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed pending or, to the best knowledge of each of the Seller PartiesSeller, threatened to propose United States federal or assert, applicable state tax audits involving Seller or any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claimof its affiliates the adverse determination of which could result in a lien upon the Acquired Assets.
4.7.2 Each of the Sellers (b) Seller 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, shareholder shareholder, or other third partyparty prior to the Closing Date.
4.7.3 None of the (c) Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects does not know that any authority has expressed the intent to assess any additional Taxes for any period for which Tax Returns have been filed. Seller has no knowledge of any basis for such an assessment. There is no dispute or claim concerning any Tax Liability of any of the Sellers Seller either (ai) claimed or raised by any authority in writing writing; or (bii) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 4.7(c) of the Sellers Seller Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns filed with respect to Seller for taxable periods ended on or after July 31, 1999, indicates those Tax Returns that have been audited and/or audited, and indicates those Tax Returns that currently are the subject of audit. Sellers have Seller has delivered to PEI or its designee Buyer correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers Seller since their date of incorporationDecember 31, 1999.
4.7.4 None of the (d) Seller Parties 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.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 The Seller Parties Except for such matters that would not, individually or in the aggregate, have a Material Adverse Effect:
(a) each of the Companies as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports (collectively the "Returns") relating to any and all Taxes concerning or attributable to such Company or its operations and such Returns are true and correct and have caused to be filed been completed in accordance with applicable Law;
(b) each of the Companies as of the Closing Date: (i) will have paid or will file or will cause to be filed accrued all Tax Returns Taxes it is required to be filed pay or accrue and (ii) will have paid withheld and timely remitted with respect to its Employees all federal and state income taxes, FICA, FUTA and other Taxes required to be paid by the Seller Parties for all periods ending on or before the Closing Date. Adequate provision has been made in the books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.remitted;
4.7.3 None of (c) there are no Liens on the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability assets of any of the Sellers either Companies relating to or attributable to Taxes other than Liens for taxes not yet due and payable;
(ad) claimed or raised by any authority in writing or (b) as to which any for each of the Seller Parties Companies, the tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is properly reflected on such Company's tax books and records;
(e) each of the directors and officers Companies has established (and employees responsible until the Closing will establish) on its respective books and records reserves (to be specifically designated as an increase to current liabilities) that are adequate for Tax mattersthe payment of all taxes not yet due and payable;
(f) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all no federal, state, local, and local or foreign income Tax audits or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Returns that have been audited and/or that currently are the subject in respect of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None Companies. No tax authority has threatened or has any reasonable basis to assert against any of the Seller Parties has waived Companies any statute of limitations in respect of Taxes deficiency or agreed to any extension of time with respect to a Tax assessment or deficiency.claim for additional taxes; and
4.7.5 To the knowledge of each (g) none of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties Companies is a party to or owes any Tax amount under any tax-sharing or allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Bankers Insurance Group Inc)
Tax and Other Returns and Reports. 4.7.1 The Seller Parties have timely filed or have caused to be filed or will file or will cause to be (a) Company has filed all Tax required Returns required to be filed and have such Returns are true and correct in all material respects.
(b) Company has (i) paid all Taxes due or has adequately reserved for such Taxes, whether or not shown on Returns (including any liabilities resulting from delinquent tax payments or filings) on its Financial Statements in accordance with GAAP, and (ii) withheld with respect to its employees all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld other than any Taxes to be paid by such employees as a result of the Seller Parties for all periods ending receipt of consideration pursuant to Section 2.6.
(c) There is no Tax deficiency outstanding, assessed, or to the Company's Knowledge proposed, against Company, nor has Company executed any waiver of any statute of limitations on or before extending the Closing Date. Adequate provision period for the assessment or collection of any Tax.
(d) To the Company's Knowledge, no audit or other examination of any Return of Company is presently in progress nor has Company been made notified of any request for such an audit or other examination.
(e) Company does not have any material Liabilities for unpaid federal, state, local and foreign Taxes due and payable as of the date of the Balance Sheet which have not been accrued or reserved against on the Balance Sheet in accordance with GAAP.
(f) Company has provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Returns filed for fiscal years 1995, 1996 and 1997.
(g) There are no Encumbrances on the assets of Company relating to or attributable to Taxes other than Encumbrances for Taxes not yet due and payable.
(h) None of Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(i) As of the Effective Time, there will not be any Contract, plan or arrangement covering any employee or former employee of Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code as a result of the transactions contemplated by this Agreement.
(j) Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Company.
(k) Company is not a party to a tax sharing or allocation agreement nor does Company owe any amount under any such agreement.
(l) Company is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(m) Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on Company's tax books and records of each of the Sellers, and to the extent required by GAAP in the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers 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, shareholder or other third party.
4.7.3 None of the Seller Parties nor any director or officer (or employee responsible for Tax matters) of the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability of any of the Sellers either (a) claimed or raised by any authority in writing or (b) as to which any of the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
4.7.5 To the knowledge of each of the Seller Parties, the unpaid Taxes of Sellers (a) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes 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 (b) 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 Sellers in filing their Tax Returns.
4.7.6 None of the Seller Parties is a party to any Tax allocation or sharing agreement. None of the Sellers (a) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other of the Sellers) or (b) has any Liability for the Taxes of any Person (other than any of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Tax and Other Returns and Reports. 4.7.1 (a) For the purposes of this Agreement, "Tax" or "Taxes" refers to any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities relating to taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts and including any liability for taxes of a predecessor entity.
(b) The Seller Parties Company and each of its subsidiaries have timely filed or have caused (taking into account applicable extensions) all federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to be filed or will file or will cause to be filed all Tax Returns Taxes required to be have been filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company, and have paid all Taxes required shown to be paid by the Seller Parties for all periods ending due on or before the Closing Date. Adequate provision has been made in the books such Returns.
(c) The Company and records of each of its subsidiaries as of the SellersEffective Time will have withheld with respect to its employees all federal and state income taxes, and Taxes pursuant to the extent required by GAAP in Federal Insurance Contribution Act ("FICA"), Taxes pursuant to the Financial Statements, for all Taxes whether or not due and payable and whether or not disputed. The Seller Parties have prepared all required Federal Unemployment Tax Returns, including amendments to date, in good faith without gross negligence or willful misrepresentation, and such Tax Returns are complete and accurate in all material respects. Section 4.7.1 of the Sellers Disclosure Schedule lists the date or dates through which the IRS Act ("FUTA") and any other Governmental Entity have examined the United States federal income tax returns and any other Tax Returns of the Seller Parties. Except as set forth in Section 4.7.1 of the Sellers Disclosure Schedule, no Governmental Entity has during the past three years, examined or is in the process of examining any Tax Returns of the Seller Parties or proposed (tentatively or definitively), asserted or assessed or, to the best knowledge of each of the Seller Parties, threatened to propose or assert, any deficiency, assessment or claim for Taxes and there would be no basis for any such delinquency assessment or claim.
4.7.2 Each of the Sellers withheld and paid all Taxes required to have been withheld and paid withheld, in connection with all cases to the extent such amounts paid are materially individually or owing to any employee, independent contractor, creditor, shareholder or other third partyin the aggregate.
4.7.3 None of (d) Neither the Seller Parties Company nor any director or officer (or employee responsible for Tax matters) of its subsidiaries has been delinquent in the Sellers reasonably expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Tax Liability payment of any of material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Sellers either (a) claimed Company or raised by any authority in writing or (b) as to which any of its subsidiaries, nor has the Seller Parties and the directors and officers (and employees responsible for Tax matters) of the Sellers has knowledge based upon personal contact with any agent of such authority. Section 4.7.3 of the Sellers Disclosure Schedule lists all federal, state, local, and foreign income Tax Returns that have been audited and/or that currently are the subject of audit. Sellers have delivered to PEI Company or its designee correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of the Sellers since their date its subsidiaries executed any unexpired waiver of incorporation.
4.7.4 None of the Seller Parties has waived any statute of limitations on or extending the period for the assessment or collection of any Tax.
(e) To the Company's knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in respect progress, nor has the Company or any of Taxes its subsidiaries been notified of any request for such an audit or agreed other examination.
(f) No adjustment relating to any extension Returns filed by the Company or any of time with respect its subsidiaries has been proposed in writing formally or informally by any Tax authority to a Tax assessment the Company or deficiencyany of its subsidiaries or any representative thereof.
4.7.5 To (g) Neither the knowledge Company nor any of each its subsidiaries has any material liability for unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since the date of the Seller Parties, Company Balance Sheet in connection with the unpaid Taxes of Sellers (a) did not, as operation of the Most Recent Fiscal Month End, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face business of the Most Recent Balance Sheet (rather than Company and its subsidiaries in any notes thereto) and (b) 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 Sellers in filing their Tax Returnsordinary course.
4.7.6 None of (h) There is no contract, agreement, plan or arrangement to which the Seller Parties Company is a party to this Agreement, including, but not limited to, the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Internal Revenue Code of 1986, as amended (the "Code").
(i) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(j) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(k) Except as may be required as a result of the Merger, the Company and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax allocation period (or sharing agreement. portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(l) None of the Sellers Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(am) The Disclosure Schedule lists (i) any foreign Tax holidays, (ii) any intercompany transfer pricing agreements, or other arrangements that have been established by the Company or any of its subsidiaries with any Tax authority, and (iii) any expatriate programs or policies affecting the Company or any of its subsidiaries.
(n) 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.
(o) The Company has been a member qualifying S corporation within the meaning of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which were one or the other Section 1361 of the SellersCode (and any similar relevant state or local statute) at all times since its inception.
(p) The Company has reviewed with the Company's own tax advisors the federal, state and local tax consequences of the Merger and the transactions contemplated by this Agreement. The Company is relying solely on such advisors and not on any statements or representations of the Parent or any of its agents, and understands that the Company (band not the Parent) has any Liability shall be responsible for the Taxes of any Person (other than any Company's own tax liability that may arise as a result of the Sellers) under Reg. ss.1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, transactions contemplated by contract, or otherwisethis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Flycast Communications Corp)
