Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule. (b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable. (c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned. (d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule. (e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule. (f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 11 contracts
Samples: Agreement and Plan of Reorganization (Call Points Inc), Agreement and Plan of Reorganization (Call Points Inc), Merger Agreement (Vialog Corp)
Tax Matters. Except as set forth in Section 3.14 of the Company Disclosure Schedule or as would not have, individually or in the aggregate, a Company Material Adverse Effect:
(a) Each The Company and its Subsidiaries (i) have duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to have been filed by or with respect to the Company or any of its Subsidiaries, and all such Tax Returns are true, correct and complete in all material respects, (ii) have duly and timely paid all Taxes shown as due on such Tax Returns, (iii) have adequate accruals and reserves, in accordance with GAAP, on the financial statements included in the Company SEC Documents for all Taxes payable by the Company and each Subsidiary has in accordance with its Subsidiaries for all Applicable Laws filed all Tax Returns which are required to be filedtaxable periods and portions thereof through the date of such financial statements, and has paid(iv) have not, or made adequate provision for since the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns date of the financial statements included in the most recent Company SEC Documents, incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and each Subsidiary practice and (v) have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which not received written notice of any deficiencies for any Tax from any taxing authority against the Company and each Subsidiary or any of its Subsidiaries for which there are required by law not adequate reserves on the financial statements included in the Company SEC Documents.
(b) Neither the Company nor any of its Subsidiaries is the subject of any currently ongoing tax audit or other proceeding with respect to withhold and collect have Taxes nor has any Tax audit or other proceeding with respect to Taxes been duly withheld and collected and have been paid overproposed against any of them in writing. As of the date of this Agreement, in a timely manner, there are no pending requests for waivers of the time to the proper Authorities to the extent due and payableassess any Tax. Neither the Company nor any Subsidiary of its Subsidiaries has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax liabilities assessment or deficiency. There are no Liens for Taxes on any of the assets of the Company or any Subsidiary of its Subsidiaries other than any Lien for Taxes not yet delinquent, being contested in good faith or for which adequate accruals or reserves have been established and disclosed in the fiscal year prior to and including the most recent fiscal yearCompany SEC Documents. Adequate provision No claim has ever been made on the most recent balance sheet forming part in writing by a taxing authority of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to a jurisdiction where the Company or any Subsidiary for which an adequate reserve one of its Subsidiaries has not been provided on filed Tax Returns claiming that the Company or such balance sheet. Each Subsidiary is or may be subject to taxation by that jurisdiction.
(c) Neither the Company nor any of its Subsidiaries is obligated by any written contract, agreement or other arrangement to indemnify any other person (other than the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aits Subsidiaries) of the Disclosure Schedulewith respect to Taxes. Neither the Company nor any Subsidiary has ever been of its Subsidiaries is a member of party to or bound by any consolidated group written Tax allocation, indemnification or sharing agreement (other than exclusively an agreement with the Company or its Subsidiaries). To the knowledge of the Company, neither the Company nor any of its Subsidiaries is liable under Treasury Regulation Section 1.1502-6 (or any similar provision of the Tax Laws of any state, local or foreign jurisdiction) or as a transferee or successor for any Tax of any person other than the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have withheld and paid all Taxes required to have been audited by the IRS withheld and paid in connection with amounts paid or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedulesowing to any employee, and neither the Company nor any Subsidiary has been notified regarding any pending auditindependent contractor, except as shown in Section 3.11(d) of the Disclosure Schedulecreditor, stockholder or other third party.
(e) Neither the Company nor any Subsidiary is of its Subsidiaries was a party “distributing corporation” or “controlled corporation” in a transaction intended to any tax sharing agreement or arrangement, except as set forth in qualify under Section 3.11(e) 355 of the Disclosure ScheduleCode within the past two years or otherwise as part of a plan that includes the Merger.
(f) Neither the Company nor any Subsidiary of its Subsidiaries has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" participated in any “reportable transaction” within the meaning of Treasury Regulation Section 382(g1.6011-4.
(g) The Company has made available to Parent or its legal or accounting representative copies of all federal and state income Tax Returns for the Company and each of its Subsidiaries filed for all periods including and after the period ended December 31, 2005.
(h) As used in this Agreement, (i) “Taxes” means any and all domestic or foreign, federal, state, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, occupation, property, transfer, sales, use, capital stock, severance, alternative minimum, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of excise, withholding, ad valorem or value added or other taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the Code, except as set forth in Section 3.11(f) same or a similar nature to any of the Disclosure Scheduleforegoing, and (ii) “Tax Return” means any return, report or similar filing (including the attached schedules) with respect to Taxes, including any information return, claim for refund, amended return or declaration of estimated Taxes.
Appears in 9 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc), Agreement and Plan of Merger (Southern Union Co)
Tax Matters. Except as set forth on Schedule 5.17 hereto:
(a) Each The Company and each of its Subsidiaries, and each affiliated group (within the meaning of Section 1504 of the Code) of which the Company or any Subsidiary is or has been a member, has timely filed all federal state, local, foreign, income and franchise Tax Returns (as defined below), and all other material Tax Returns required to be filed by them. All such Tax Returns are true and correct in all material respects. Except to the extent adequately reserved for in accordance with GAAP, all material Taxes due and payable by the Company and each of its Subsidiaries have been timely paid in full. The most recent consolidated financial statements contained in the Company SEC Reports reflect an adequate reserve (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) in accordance with GAAP for all Taxes payable by the Company and its Subsidiaries for all taxable periods and portions thereof through the date of such financial statements.
(b) No material deficiencies for any Taxes have been proposed, asserted or assessed in writing against the Company or any of its Subsidiaries that have not been fully paid or adequately provided for in the appropriate financial statements of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which of its Subsidiaries, no requests for waivers of the time to assess any Taxes are required to be filedpending, and no power of attorney with respect to any Taxes has paidbeen executed or filed with any taxing authority. No material issues relating to Taxes have been raised in writing by any governmental authority during any presently pending audit or examination. For any open taxable period, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary of its Subsidiaries have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which not waived or extended the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of applicable to any Tax liabilities or Tax Return or consented to any extension of time with respect to any material tax assessment or deficiency.
(c) There are no material liens or encumbrances for Taxes on any of the assets of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group its Subsidiaries (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all current Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes not yet due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned).
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies each of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by complied in all material respects with all applicable laws, rules and regulations relating to the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) payment and withholding of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleTaxes.
(e) Neither the Company nor any Subsidiary of its Subsidiaries has made any payments, nor are any of them obligated to make any payments, and none of them is a party to any tax sharing agreement that could obligate it to make any payments that would not be deductible by reason of Sections 280G or arrangement, except as set forth in Section 3.11(e162(m) of the Disclosure ScheduleCode as a result of the transactions contemplated by this Agreement.
(f) Neither the Company nor any Subsidiary has ever of its Subsidiaries is a party to any tax allocation agreement, tax sharing agreement, tax indemnity agreement or similar agreement, arrangement or practice with respect to Taxes (including any advance pricing agreement, closing agreement or other agreement relating to Taxes with any taxing authority but excluding in each case any contract entered into in the ordinary course of business and the primary subject of which is not Taxes). Neither the Company nor any of its Subsidiaries (i) filed has been a consent member of an affiliated group for federal income tax purposes other than a group of which the Company is the common parent or (ii) has any liability for the Taxes of any person other than itself under Treasury Regulations Section 1.1502-6 (or any similar provision of U.S. state or local or non-U.S. Tax Law), or as a transferee or successor.
(g) No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns of the Company or its Subsidiaries and neither the Company nor any of its Subsidiaries has received a written notice of any pending audit or proceeding, in any such case involving a material issue with respect to Taxes.
(h) Neither the Company nor any of its Subsidiaries has agreed to or is required to make any material adjustment under Section 341(f481(a) of the Code concerning collapsible corporations as a result of a “closing agreement” as described in Section 7121 of the Code (or any similar or corresponding provision of U.S. state or local or non-U.S. Tax Law) that, in either case, would result in the inclusion of a material amount of income in, or the exclusion of a material amount of deductions from, taxable income for any taxable period (iior portion thereof) undergone an "ownership change" ending after the Closing Date.
(i) No property owned by the Company or any of its Subsidiaries (i) constitutes “tax exempt use property” within the meaning of Section 382(g168(h)(1) of the Code, except as set forth in ; or (ii) is tax exempt bond financed property within the meaning of Section 3.11(f168(g) of the Disclosure ScheduleCode.
(j) Neither the Company nor any of its Subsidiaries has (i) in the two (2) years prior to the date of this Agreement, distributed stock of another person, or has had its stock distributed by another person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code or (ii) engaged in any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) (or any similar provision of U.S. state or local or non-U.S. Tax Law).
Appears in 8 contracts
Samples: Agreement and Plan of Merger (Brekford Traffic Safety, Inc.), Agreement and Plan of Merger (Brekford Traffic Safety, Inc.), Agreement and Plan of Merger (Novume Solutions, Inc.)
Tax Matters. (a) Each of the Company and each Subsidiary its Subsidiaries has in accordance with all Applicable Laws timely filed, or has caused to be timely filed on its behalf (taking into account any extension of time within which to file), all Tax Returns which required to be filed by it, and all such filed Tax Returns are correct and complete, except as would not reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its Subsidiaries has paid all Taxes that are required to be filedpaid by it (whether or not shown or required to be shown as due on any Tax Returns), and has paid, or made adequate provision for the payment of, all Taxes which except as would not reasonably be expected to have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to datea Company Material Adverse Effect. The Tax Returns Each of the Company and each Subsidiary have its Subsidiaries has withheld and timely remitted to the appropriate Governmental Authority all material Taxes required to be withheld from amounts owing to any employee, creditor or third party. No material deficiency with respect to Taxes has been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which proposed, asserted or assessed against the Company or any of its Subsidiaries which has not been fully paid or otherwise finally resolved or adequately reserved for in the Company’s financial statements included in the Company SEC Documents. No material audit or other administrative or court proceedings are pending with any Governmental Authority with respect to Taxes of the Company or any of its Subsidiaries, and each Subsidiary are required by law no written notice thereof has been received. With respect to withhold and collect have been duly withheld and collected and have been paid overany Tax years open for audit, neither the Company nor any of its Subsidiaries has granted in writing any material waiver of any statute of limitations with respect to, or any extension of a timely mannerperiod for the assessment of, any Tax, except, with respect to the proper Authorities federal income tax return for the 2011 tax year, for the extension of the statute of limitations to the extent due and payableJune 30, 2016. Neither the Company nor any Subsidiary of its Subsidiaries has executed incurred any waiver to extend, or otherwise taken or failed to take any action that would have liability for Taxes since the effect Balance Sheet Date except in the ordinary course of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(abusiness.
(b) of the Disclosure Schedule. Neither the Company nor any Subsidiary of its Subsidiaries has ever been a member any material liability for Taxes of any consolidated group Person (other than except for the Company or any of its Subsidiaries) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of state, local or foreign Law, or as a transferee or successor, by contract or otherwise.
(c) Neither the Company nor any of its Subsidiaries is a party to or is otherwise bound by any material Tax sharing, allocation or indemnification agreement or arrangement, except for such an agreement or arrangement (1) exclusively with between or among the Company and its Subsidiaries, or (2) for Tax purposeswith customers, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required vendors, lessors or other third parties entered into in the ordinary course of business with respect and not primarily related to current operations or property presently ownedTaxes.
(d) The information shown on the federal income No closing agreements, private letter rulings, technical advice memoranda, advance Tax Returns rulings, advance pricing agreements, or similar written agreements or rulings have been entered into or issued by any Governmental Authority with respect to Taxes of the Company and or any of its Subsidiaries (true, correct and complete copies of which in each case that could reasonably be expected to have been furnished by a material effect on the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns liability of the Company and or any of its Subsidiaries have been audited by after the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(dClosing Date.
(e) There are no material Liens on any of the Disclosure Schedulesassets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax.
(f) In any Taxable period ending after the Closing Date, and neither the Company nor any Subsidiary has been notified regarding of its Subsidiaries will be required to include or accelerate the recognition of any pending auditmaterial item of income, except or exclude or defer any material item of deduction or other Tax benefit, in either case as shown a result of any change in Section 3.11(d) method of Tax accounting made prior to the Disclosure ScheduleClosing Date, any installment sale prior to the Closing Date, any closing agreement entered into prior to the Closing Date, or any prepaid amount received prior to the Closing Date.
(eg) Within the past three (3) years, neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(h) Neither the Company nor any Subsidiary is a party to of its Subsidiaries has engaged in any tax sharing agreement “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) or arrangement, except as set forth Treasury Regulations Section 301.6111-2(b) in Section 3.11(e) any Tax year for which the statute of the Disclosure Schedulelimitations has not expired.
(fi) Neither This Section 3.9 and Section 3.10 constitute the sole and exclusive representations and warranties of the Company nor any Subsidiary has ever regarding Tax matters.
(j) For purposes of this Agreement: (i) filed “Taxes” shall mean all federal, state, local or foreign taxes, customs, tariffs, duties, charges, fees, imposts, levies or other assessments imposed by a consent under Section 341(f) Governmental Authority, including all income, gross receipts, franchise, estimated, alternative minimum, add on minimum, sales, use, transfer, value added, excise, severance, stamp, customs, duties, escheat, unclaimed property, real property, personal property, capital stock, social security, unemployment, payroll, employee, withholding, or other tax imposed by a Governmental Authority, including any interest, penalties or additions to tax imposed by any Governmental Authority in connection with any of the Code concerning collapsible corporations or foregoing and (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code“Tax Returns” shall mean any return, except as set forth in Section 3.11(f) of the Disclosure Schedulereport, claim for refund, estimate, information return or statement or other similar document relating to or required to be filed with any Governmental Authority with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Appears in 5 contracts
Samples: Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement (Duke Energy CORP), Merger Agreement
Tax Matters. (a) Each As a condition precedent to the vesting of the Company Restricted Stock and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns delivery of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable shares issued hereunder, the Grantee shall, upon request by the Company, pay to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law such amount as the Company may be required, under all applicable federal, state, local or other laws or regulations, to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to pay over as income or other withholding taxes (the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any “Required Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aPayments”) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income award. If the Grantee shall fail to advance the Required Tax Returns of Payments after request by the Company, the Company and may, in its Subsidiaries (truediscretion, correct and complete copies of which have been furnished deduct any Required Tax Payments from any amount then or thereafter payable by the Company to VIALOGthe Grantee. The Grantee may elect to satisfy his or her obligation to advance the Required Tax Payments by any of the following means: (1) is truea cash payment to the Company, correct (2) delivery to the Company (either actual delivery or by attestation procedures established by the Company) of previously owned whole shares of Common Stock having an aggregate Fair Market Value, determined as of the date on which such withholding obligation arises (the “Tax Date”), equal to the Required Tax Payments, (3) authorizing the Company to withhold whole shares of vested Common Stock which would otherwise be delivered to the Grantee having an aggregate Fair Market Value, determined as of the Tax Date, equal to the Required Tax Payments, or (4) any combination of (1), (2) and complete and fairly and accurately reflects the information purported (3). Shares of Common Stock to be shown. Federal and state income Tax Returns delivered or withheld may not have a Fair Market Value in excess of the Company minimum amount of the Required Tax Payments. Any fraction of a share which would be required to satisfy any such obligation shall be disregarded and its Subsidiaries the remaining amount due shall be paid in cash by the Grantee. No certificate representing a share of Common Stock shall be delivered until the Required Tax Payments have been audited by the IRS or applicable state Authority for the taxable periods set forth satisfied in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulefull.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 5 contracts
Samples: Performance Award Agreement (Schweitzer Mauduit International Inc), Restricted Stock Award Agreement (Schweitzer Mauduit International Inc), Performance Award Agreement (Schweitzer Mauduit International Inc)
Tax Matters. (ai) Each of the Company and each Subsidiary its Subsidiaries has in accordance with all Applicable Laws timely filed all Tax material Returns which are required to be filed, and has paid, or made adequate provision for filed by it with any Tax authority prior to the payment ofdate hereof. To the Knowledge of the Company, all Taxes which have or may become due such Returns are true, correct and payable pursuant to said Returns and complete in all other governmental charges and assessments received to datematerial respects. The Tax Returns Each of the Company and its Subsidiaries has paid all Taxes shown to be due on such Returns.
(ii) All material Taxes that each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which of the Company and each Subsidiary are its Subsidiaries is required by law Law to withhold and or collect have been duly withheld and collected or collected, and have been timely paid over, in a timely manner, over to the proper Authorities Governmental Entities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(biii) Each of the Company and its Subsidiaries is not delinquent in the payment of any Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or its Subsidiaries, nor has the Company or its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) To the Knowledge of the Company, no audit or other examination of any Return of the Company or its Subsidiaries by any Tax authority is presently in progress. Neither the Company nor its Subsidiaries has been notified of any request for such an audit or other examination.
(v) No adjustment relating to any Returns filed by the Company or its Subsidiaries has been proposed in writing, formally or informally, by any Tax authority to the Company, its Subsidiaries or any representative thereof.
(vi) The Company and each Subsidiary of its Subsidiaries has paid established (or has had established on its behalf) in accordance with GAAP an adequate accrual for all Taxes (including Taxes that are not yet due or payable) through the end of the last period for which have become due pursuant the Company and its Subsidiaries ordinarily record items on their respective books, and regardless of whether the liability for such Taxes is disputed. The Company has made available to Parent and Merger Sub complete and accurate copies of all material income, franchise, and foreign Tax Returns, and any amendments thereto, filed by or on behalf of the Company or any of its Returns and has paid all installments Subsidiaries, subsequent to December 31, 2002.
(vii) There are no material Liens on the assets of the Company or any of its Subsidiaries relating or attributable to the extent required to avoid material underpayment penalties) of estimated Taxes, other than Liens for Taxes not yet due and payable.
(cviii) From The Company and its Subsidiaries have not executed any closing agreement pursuant to Section 7121 of the end Code or any predecessor provision thereof, or any similar provision of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations state or property presently ownedlocal law.
(dix) The information shown on the federal income Tax Returns Each of the Company and its Subsidiaries has disclosed on its Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code or any similar provision of state or local law.
(truex) Neither the Company nor any of its Subsidiaries has (i) ever been a party to a Contract or inter-company account system in existence under which the Company or any of its Subsidiaries has, correct or may at any time in the future have, an obligation to contribute to the payment of any portion of a Tax (or pay any amount calculated with reference to any portion of a Tax) of any group of corporations of which the Company or any of its Subsidiaries is or was a part (other than a group the common parent of which is the Company) and (ii) any Liability for Taxes of any person (other than the Company or any of its Subsidiaries) under Treasury regulation Section 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor, by contract or otherwise.
(xi) No written claim has been made during the past five years by any appropriate Governmental Entity in a jurisdiction where neither the Company nor any of its Subsidiaries filed Tax Returns that it is or may be subject to any material taxation by that jurisdiction.
(xii) Neither the Company nor any of its Subsidiaries has participated or engaged in transactions that constitute “reportable transactions” as such term is defined in Treasury Regulation Section 1.6011-4(b)(1) (other than such transactions that have been properly reported or are not yet required to have been reported), or transactions that constitute “listed transactions” as such term is defined in Treasury Regulation Section 1.6011-4(b)(2).
(xiii) Neither the Company nor any of its Subsidiaries has agreed or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or foreign law by reason of a change in accounting method initiated by it or any other relevant party and neither the Company nor any of its Subsidiaries has any Knowledge that the appropriate Governmental Entity has proposed any such adjustment or change in accounting method, nor is any application pending with any appropriate Governmental Entity requesting permission for any changes in accounting methods that relate to the business or assets of the Company or any of its Subsidiaries.
(xiv) The Company and its Subsidiaries will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) any installment sale or open transaction disposition made on or prior to the Closing Date or (ii) any prepaid amount received on or prior to the Closing Date.
(xv) The Company is not a United States Real Property Holding Corporation within the meaning of Section 897(c)(2) of the Code and was not a United States Real Property Holding Corporation at any time during the applicable period, as defined in Section 897(c)(1)(A)(ii) of the Code.
(xvi) Neither the Company nor any of its Subsidiaries has undergone an ownership change under Section 382 of the Code during the preceding three (3) years.
(xvii) The Company and its Subsidiaries have delivered or made available to Parent complete and accurate copies of all letter rulings, technical advice memoranda, and similar documents issued to the Company or any of its Subsidiaries since January 1, 1996, by a Governmental Entity relating to federal, state, local or foreign Taxes due from or with respect to the Company or any of its Subsidiaries. The Company will deliver to Parent all materials with respect to the foregoing for all matters arising after the date hereof through the Closing Date.
(xviii) Section 3.01(l) of the Company Disclosure Letter contains a complete and accurate list of each jurisdiction in which the Company or any of its Subsidiaries benefits or has benefited from exemptions from taxation, Tax holidays, reduction in Tax rate or similar Tax reliefs (the “Incentives”) and describes the details of such Incentives. The Company and its Subsidiaries are in full compliance with all terms and conditions of any agreement or Law relating to such Incentives in such jurisdictions where such Incentives are available, and have been furnished received no written notice from any Governmental Entity claiming that such Incentives were not, or will not in the future, be available.
(xix) None of the assets of the Company or any of its Subsidiaries is treated as “tax exempt use property,” within the meaning of Section 168(h) of the Code.
(xx) For the purpose of supporting the positions taken by the Company to VIALOG) is trueon its filed Tax Returns, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by maintained the IRS or applicable state Authority for the taxable periods set forth in books and records required to be maintained pursuant to Section 3.11(d) 6001 of the Disclosure SchedulesCode and the rules and regulations thereunder, and comparable laws of the countries, states, counties, provinces, localities and other political divisions wherein it is required to file Tax Returns and other reports relating to Taxes.
(xxi) During the two-year period ending on the date of this Agreement, neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) 355 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Image Entertainment Inc), Merger Agreement (BTP Acquisition Company, LLC), Agreement and Plan of Merger (BTP Acquisition Company, LLC)
Tax Matters. (a) Each Except as set forth in Section 3.11(a) of the Company and each Subsidiary Diablo Disclosure Schedule, Diablo has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and except with respect to failures to file which in the aggregate would not have a material adverse effect on Diablo and, to Diablo's knowledge, has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Tax Returns and all other governmental charges and assessments received to datedate other than those Taxes being contested in good faith for which adequate provision has been made on the most recent balance sheet forming part of Diablo Financial Statements. The Tax Returns of the Company and each Subsidiary have Diablo have, to Diablo's knowledge, been prepared in all material respects in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are Diablo is required by law to withhold and collect have have, to Diablo's knowledge, been duly withheld and collected collected, and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary Diablo has not executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary Diablo for the fiscal year years prior to and including the most recent fiscal year. Adequate provision has has, to Diablo's knowledge, been made on the most recent balance sheet forming part of the Diablo Financial Statements for all Taxes accrued through the date of such balance sheet of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and there are, to the knowledge of the Company there are Diablo's knowledge, no past transactions or matters or any basis which might or could result in additional Taxes of any a material nature to the Company or any Subsidiary Diablo for which an adequate reserve has not been provided on such balance sheet. Each Diablo is not a "consenting corporation" within the meaning of Section 341(f) of the Company and each Subsidiary Code. Diablo has at all times been taxable as a Subchapter C S corporation under the Code, and has never been a member of any consolidated group for Tax purposes, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Diablo Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of Diablo for each of the Company and its Subsidiaries most recent five tax years (true, correct true and complete copies of which have have, to the extent requested by ATS, been furnished by the Company Diablo to VIALOGATS) is is, to Diablo's knowledge, true, correct accurate and complete in all material respects and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries Diablo have not been audited examined by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure SchedulesAuthority, and neither the Company nor any Subsidiary Diablo has not been notified regarding of any pending auditproposed examination, except as shown in Section 3.11(d3.11(b) of the Diablo Disclosure Schedule.
(ec) Neither the Company nor any Subsidiary Diablo is not a party to any tax sharing agreement or arrangement, except as set forth other than those contained in Section 3.11(e) certain of the Disclosure Scheduleits leases.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 4 contracts
Samples: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Tax Matters. (a) Each Except as set forth in Section 2.17(a) of the Company Disclosure Schedule, the Company and each of its Subsidiaries have timely filed all income Tax Returns and other material Tax Returns that they were required to file under applicable Law. All such Tax Returns are correct and complete in all material respects and have been prepared in compliance with all applicable Law. No written claim has ever been made by any Governmental Body in any jurisdiction where the Company or any of its Subsidiaries does not file a particular Tax Return or pay a particular Tax that the Company or such Subsidiary is subject to taxation by that jurisdiction.
(b) All material amounts of income and other Taxes due and owing by the Company or any of its Subsidiaries on or before the date hereof (whether or not shown on any Tax Return) have been fully paid. The unpaid Taxes of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filedits Subsidiaries did not, and has paid, or made adequate provision for as of the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns date of the Company Unaudited Interim Balance Sheet, materially exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which Tax items) set forth on the face of the Company and each Subsidiary Unaudited Interim Balance Sheet. Since the date of the Company Unaudited Interim Balance Sheet, neither the Company nor any of its Subsidiaries has incurred any material Liability for Taxes outside the Ordinary Course of Business.
(c) All material amounts of Taxes that the Company or any of its Subsidiaries are or were required by law Law to withhold and or collect on behalf of their respective employees, independent contractors, equityholders, lenders, customers, or other third parties have been duly and timely withheld and or collected and have been timely paid over, in a timely manner, to the proper Authorities to the extent Governmental Body or other Person or properly set aside in accounts for this purpose.
(d) There are no Encumbrances for material Taxes (other than Taxes not yet due and payable) upon any of the assets of the Company or any of its Subsidiaries.
(e) No deficiencies for income or other material Taxes with respect to the Company or any of its Subsidiaries have been claimed, proposed or assessed by any Governmental Body in writing. There are no pending or ongoing audits, assessments or other actions for or relating to any liability in respect of a material amount of Taxes of the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received written notice threatening any such audit, assessment or other action. Neither the Company nor any Subsidiary of its Subsidiaries (or any of their predecessors) has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities income or other material Taxes or agreed to any extension of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business time with respect to current operations any income or property presently owned.
(d) The information shown on the federal income other material Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS assessment or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Scheduledeficiency.
(f) Neither the Company nor any Subsidiary of its Subsidiaries has ever (i) filed been a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" United States real property holding corporation within the meaning of Section 382(g897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(g) Neither the Company nor any of its Subsidiaries is a party to any Tax allocation agreement, except Tax sharing agreement, Tax indemnity agreement, or similar agreement or arrangement, other than customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not Taxes.
(h) None of Parent, the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date as set forth in Section 3.11(f) a result of the Disclosure Schedule.any: (i)
Appears in 4 contracts
Samples: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all All material Tax Returns which required to be filed by Alphabet or its Subsidiaries on or prior to the Effective Time or with respect to taxable periods ending on or prior to the Effective Time have been or will be prepared in good faith and timely filed with the appropriate Governmental Entity on or prior to the Effective Time or by the due date thereof including extensions except where the failure to so file would not, individually or in the aggregate, reasonably be expected to have an Alphabet Material Adverse Effect.
(b) Except where the failure to pay, collect or withhold would not, individually or in the aggregate, reasonably be expected to have an Alphabet Material Adverse Effect (i) all Taxes that are required to be filedpaid have been or will be fully paid (except with respect to matters contested in good faith as set forth in the Alphabet Disclosure Letter) or as of May 2, 1998 adequately reflected as a liability on Alphabet's or its Subsidiaries' books and has paid, or made adequate provision for the payment of, records (without taking into account any deferred Tax liabilities) and (ii) all Taxes which required to be collected or withheld from third parties have in all material respects been collected or may become due withheld.
(c) Alphabet and payable pursuant each of its Subsidiaries have not waived any statute of limitations with respect to said Returns and all other governmental charges and assessments received federal income Taxes or agreed to date. The any extension of time with respect to a federal income or material state Tax Returns assessment or deficiency.
(d) As of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary date hereof, there are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely mannernot pending or, to the proper Authorities to the extent due and payable. Neither the Company nor knowledge of Alphabet, threatened in writing, any Subsidiary has executed any waiver to extendaudits, examinations, investigations or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations other proceedings in respect of Taxes or Tax matters that (i) were raised by any Tax liabilities of the Company Taxing authority in a written communication to Alphabet or any Subsidiary and (ii) would, individually or in the aggregate, reasonably be expected to have an Alphabet Material Adverse Effect after taking into account any reserves for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made Taxes set forth on the most recent balance sheet forming part of contained in the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year Alphabet SEC Report filed prior to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulehereof.
(e) Neither the Company nor any Subsidiary is a party Alphabet has made available to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) Abacus true and correct copies of the Disclosure ScheduleUnited States federal income and all material state income or franchise Tax Returns filed by Alphabet and its Subsidiaries for each of its fiscal years ended on or about January 31, 1995, 1996, 1997.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 4 contracts
Samples: Merger Agreement (Albertsons Inc /De/), Merger Agreement (American Stores Co /New/), Merger Agreement (Albertsons Inc /De/)
Tax Matters. Except as set forth in the Disclosure Schedule, Seller hereby represents and warrants, as of the date hereof and as of the Closing Date, to Buyer that:
(a) Each Seller and its Subsidiaries have timely paid all Taxes required to be paid, the non-payment of the Company which would result in a Lien on any Purchased Asset or Share.
(b) Seller and each Subsidiary has its Subsidiaries have established, in accordance with all Applicable Laws filed all Tax Returns which are required to be filedGAAP applied on a consistent basis with that of preceding periods, and has paid, or made adequate provision reserves for the payment of, and will timely pay, all (i) Taxes which have or may become due and payable pursuant (A) which arise from or with respect to said Returns the Purchased Assets, the Shares or the operation of the Business or (B) of the Purchased Subsidiaries, in each case which are incurred in or attributable to the Pre-Closing Tax Period and (ii) all other governmental charges and assessments received to date. The Taxes arising out of the Restructuring.
(c) Each Purchased Subsidiary has timely filed all material Tax Returns that it was required to file. All such Tax Returns were correct and complete in all material respects and were prepared in substantial compliance with all applicable laws and regulations. All material Taxes owed and due by Purchased Subsidiaries have been paid. There are no Liens on any of the Company assets of the Purchased Subsidiaries that arose in connection with any failure (or alleged failure) to pay any material Tax.
(d) There is no dispute or claim concerning any material Tax liability of any Purchased Subsidiary either (i) claimed or raised by any authority in writing or (ii) as to which any directors and each Subsidiary have been prepared in accordance with all Applicable Laws officers (and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor employees responsible for Tax matters) of Seller or any Purchased Subsidiary has executed knowledge based upon personal contact with any waiver to extend, or otherwise taken or failed to take agent of such authority.
(e) No Purchased Subsidiary has waived any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities material Taxes or agreed to any extension of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business time with respect to current operations a material Tax assessment or property presently owneddeficiency.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 4 contracts
Samples: Asset and Stock Purchase Agreement, Asset and Stock Purchase Agreement (Texas Instruments Inc), Asset and Stock Purchase Agreement (Sensata Technologies Holland, B.V.)
Tax Matters. (a) Each of The Xxxxxxx Entities have timely filed with the Company and each Subsidiary has in accordance with appropriate Taxing authorities all Applicable Laws filed all material Tax Returns in all jurisdictions in which such Tax Returns are required to be filed, filed and has such Tax Returns are correct and complete in all material respects. The Xxxxxxx Entities are not the beneficiary of any extension of time within which to file any Tax Return (other than any extensions to file Tax Returns obtained in the Ordinary Course). All material Taxes of the Xxxxxxx Entities (whether or not shown on any Tax Return) have been fully and timely paid, or made adequate provision . There are no Liens for the payment of, all any material amount of Taxes which have or may become (other than a Lien for Taxes not yet due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns or for which are being contested in appropriate proceedings) on any of the Company and each Subsidiary have Assets of the Xxxxxxx Entities. No claim has ever been prepared made in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required writing by law to withhold and collect have been duly withheld and collected and have been paid over, an authority in a timely mannerjurisdiction where any Xxxxxxx Entity does not file a Tax Return that such Xxxxxxx Entity may be subject to Taxes by that jurisdiction.
(b) None of the Xxxxxxx Entities has received any written notice of assessment or proposed assessment in connection with any material amount of Taxes, to and there are no threatened in writing or pending disputes, claims, audits or examinations regarding any Taxes of any Xxxxxxx Entity. None of the proper Authorities to the extent due and payable. Neither the Company nor Xxxxxxx Entities has waived any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payableTaxes.
(c) From the end of its most recent fiscal year Each Xxxxxxx Entity has complied in all material respects with all applicable Laws, rules and regulations relating to the date hereof neither withholding of Taxes and the Company nor payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with amounts paid or owing to any Subsidiary has made any payment on account of any employee or independent contractor, and Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns be withheld and paid pursuant to Sections 1441 and 1442 of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS Internal Revenue Code or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulesimilar provisions under foreign Law.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Simmons First National Corp), Merger Agreement (Simmons First National Corp), Merger Agreement (Southwest Bancorp Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all All material Tax Returns which are required to be filed with respect to the Acquired Assets, the Assumed Liabilities or the Business have been duly and timely filed, and all such Tax Returns are true, complete and accurate in all material respects.
(b) All material Taxes required to be paid with respect to the Acquired Assets, the Assumed Liabilities or the Business (whether or not shown on any Tax Return) have been duly and timely paid.
(c) Each Seller has paidtimely and properly collected, withheld and paid over to the appropriate Governmental Authority (or made adequate provision where such payment is not yet due, set aside in an account for the payment ofsuch purpose), all Taxes which required to have been collected, withheld and paid over in connection with amounts received or may become due owed from or paid or owing to any employee, independent contractor, creditor, stockholder, customer, or other third party, and payable pursuant has complied with all applicable information reporting requirements, in each case, with respect to said Returns and all other governmental charges and assessments received or in connection with the Acquired Assets, the Assumed Liabilities or the Business.
(d) There is no Tax Proceeding pending or threatened in writing with respect to date. The Tax Returns or relating to the Acquired Assets or the Assumed Liabilities or the Business.
(e) None of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overAcquired Assets constitutes stock, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendpartnership interests, or otherwise taken any other equity interest in any Person for U.S. federal income Tax purposes.
(f) There are no Encumbrances for Taxes on any of the Acquired Assets other than Permitted Encumbrances.
(g) No Seller has received written notice of any material Tax deficiency outstanding, proposed or failed to take assessed, nor has any action that would have the effect of extending, the applicable Seller waived any statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a material Tax liabilities of the Company assessment, collection or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in deficiency with respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of Acquired Assets, the Company there are no transactions Assumed Liabilities or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleBusiness.
(bh) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (Except to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From that doing so would not adversely impact the end of its most recent fiscal year to Acquired Assets, the date hereof neither Assumed Liabilities or the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in Business, or the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns Buyer’s ownership of the Company and its Subsidiaries (trueAcquired Assets, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns or assumption of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth Assumed Liabilities, none of Sellers has participated in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “listed transaction” within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule26 C.F.R. § 1.6011-4(b)(2).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Bed Bath & Beyond Inc), Asset Purchase Agreement (OVERSTOCK.COM, Inc), Asset Purchase Agreement (Bed Bath & Beyond Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except Except as set forth in Section 3.11(a4.11(a) of the Disclosure Schedule.
(b) Each of Letter, the Company and each Subsidiary has paid its Subsidiaries have duly filed all Taxes which have become due pursuant Tax Returns required to be filed by applicable law, regulations and administrative pronouncements with respect to the Company and its Returns and has paid all installments Subsidiaries (or any of them) or any of their income, properties or operations as of the date hereof in a timely manner (taking into account applicable filing extensions listed in Section 4.11(a) of the Disclosure Letter, except to the extent that failure to make such filing has not had or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect. All such returns are accurate and complete in all material respects. All Tax Returns required to avoid material underpayment penaltiesbe filed by or with respect to the Company and its Subsidiaries (or any of them) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to after the date hereof neither and on or before the Company nor any Subsidiary Effective Time shall be prepared and timely filed (taking into account applicable filing extensions) in a manner consistent with prior years and applicable law, regulations and administrative pronouncements, except where a failure to make such filing has made any payment on account of any Taxes except regular payments required not had or would not reasonably be likely to have, individually or in the ordinary course aggregate, a Material Adverse Effect. Except as set forth in Section 4.11(a) of business the Disclosure Letter, no penalties or other charges in a material amount are or will become due with respect to current operations or property presently owned.
(d) The information shown on the federal income late filing of any Tax Returns Return of the Company and its Subsidiaries (true, correct and complete copies or any of which have been furnished by the Company to VIALOGthem) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income or payment of any Tax Returns of the Company and its Subsidiaries have been audited by (or any of them), required to be filed or paid on or before the IRS or applicable state Authority for the taxable periods Effective Time.
(b) Except as set forth in Section 3.11(d4.11(b) of the Disclosure SchedulesLetter and except where a failure of a statement contained in (i)-(iv) below to be true or complete has not had or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect with respect to all Tax Returns filed by or with respect to the Company and its Subsidiaries (or any of them):
(i) to the knowledge of the Company, the statute of limitations for the assessment of corporate income taxes has expired for all years prior to 1996;
(ii) no audit is in progress;
(iii) no waiver or agreement has been executed for the extension of time for the assessment or payment of any Tax; and
(iv) there is no deficiency proposed by a taxing authority or threatened in writing by a taxing authority against the Company or any of its Subsidiaries.
(c) Except as set forth in Section 4.11(c) of the Disclosure Letter:
(i) all material amounts required to be paid on or before the date hereof by or with respect to the Company and its Subsidiaries (or any of them) with respect to Taxes have been timely paid; and
(ii) any material amounts required to be paid by or with respect to the Company and its Subsidiaries (or any of them) with respect to Taxes after the date hereof and on or before the Effective Time shall be timely paid.
(d) Except as set forth in Section 4.11(d) of the Disclosure Letter, neither the Company nor any Subsidiary of its Subsidiaries has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary or is a party to any tax sharing agreement or similar arrangement, except as set forth in .
(e) Section 3.11(e4.11(e) of the Disclosure ScheduleLetter identifies:
(i) with respect to Subsidiaries of the Company acquired from a common parent of an affiliated group of corporations that filed a consolidated federal income tax return, the common parent of such group, and the period to which such returns related, that included the Company or any of its Subsidiaries;
(ii) all claims with respect to Taxes in a material amount that have been asserted against the Company and its Subsidiaries (or any of them) under any tax sharing agreement to which any of them is a party.
(f) Neither The Company and its Subsidiaries have made adequate provisions in accordance with United States generally accepted accounting principles appropriately and consistently applied to each of the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) and its Subsidiaries in the consolidated financial statements included in the SEC Reports for the payment of all Taxes for which each of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within Company and its Subsidiaries may be liable for the meaning of Section 382(g) periods covered thereby that were not yet due and payable as of the Codedates thereof, except as set forth for inadequate provision for tax liabilities that has not had or would not reasonably be likely to have, individually or in Section 3.11(f) of the Disclosure Scheduleaggregate, a Material Adverse Effect.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Automatic Data Processing Inc), Merger Agreement (Automatic Data Processing Inc), Agreement and Plan of Merger (Cunningham Graphics International Inc)
Tax Matters. The Company, Phase Three and SWI and each other corporation (aif any) Each of included in any consolidated or combined tax return in which the Company has been included (i) have filed and each Subsidiary has will file, in accordance a timely and proper manner, consistent with applicable laws, all Applicable Laws Federal, state and local Tax returns and Tax reports required to be filed by them through the Closing Date (the "Company Returns") with the appropriate governmental agencies in all Tax jurisdictions in which Company Returns which are required to be filed, filed and has paid, have timely paid or made adequate provision for the payment of, will timely pay all amounts shown thereon to be due; (ii) pay all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary (or such other corporation) required to have been prepared paid by the Company (or such other corporation) on or before the Closing Date; and (iii) currently are not the beneficiary of an extension of time within which to file any Tax return or Tax report. All such Company Returns were and will be correct and complete in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedmaterial respects at the time of filing. All Taxes which of the Company, Phase Three and SWI attributable to all taxable periods ending on or before the dates of the Audited Balance Sheet and the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overInterim Balance Sheet, in a timely mannerrespectively, to the proper Authorities extent not required to the extent due and payable. Neither have been previously paid, have been adequately provided for on the Company nor any Subsidiary has executed any waiver to extendBalance Sheet and the Company Interim Balance Sheet (as appropriate) and the Company, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Phase Three and SWI will not accrue any Tax liabilities liability from the date of the Company or any Subsidiary for the fiscal year prior Balance Sheet up to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kindClosing Date, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for a Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required liability accrued in the ordinary course of business and any Tax liability incurred in connection with the SWI Distribution. Except as set forth on Section 3.1(g) of the Company Disclosure Schedule, neither the Company, Phase Three nor SWI has been notified in writing by the Internal Revenue Service or any state, local or foreign taxing authority that any issues have been raised (and are currently pending) in connection with any Company Return, and no waivers of statutes of limitations have been given with respect to current operations the Company, Phase Three or property presently owned.
(dSWI that are still in effect. Except as contested in good faith and disclosed in Section 3.1(g) The information shown on the federal income Tax Returns of the Company Disclosure Schedule, any deficiencies asserted or assessments (including interest and its Subsidiaries (true, correct and complete copies penalties) made as a result of which any examination by the Internal Revenue Service or by any other taxing authorities of any Company Return have been furnished by fully paid or are adequately provided for on the Company to VIALOG) is true, correct Balance Sheet and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(dInterim Balance Sheet (as appropriate) of the Disclosure Schedules, and neither the Company Company, Phase Three nor SWI has received notification that any Subsidiary has proposed additional Taxes have been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) asserted. Neither the Company Company, Phase Three nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever SWI (i) filed has made an election to be treated as a consent "consenting corporation" under Section 341(f) of the Code concerning collapsible corporations or Code, (ii) undergone an is a "ownership changepersonal holding company" within the meaning of Section 382(g542 of the Code and (iii) has been a United States real property holding corporation within the meaning of Section 897(c) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. Neither the Company, except as set forth in Phase Three nor SWI has agreed to, nor is it required to, make any adjustment under Section 3.11(f481(a) of the Disclosure ScheduleCode by reason of a change in accounting method or otherwise. Neither the Company, Phase Three nor SWI will incur a Tax Liability resulting from the Company, Phase Three or SWI ceasing to be a member of a consolidated or combined group that had previously filed consolidated, combined or unitary Tax returns. Each granted option that was designated as an "incentive stock option" on the applicable books and records of the Company qualified as an "incentive stock option" within the meaning of the Section 422 of the Code on the date in which such option was granted.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Swi Holdings LLC), Agreement and Plan of Reorganization (Alloy Online Inc), Agreement and Plan of Reorganization (Swi Holdings LLC)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all All material Tax Returns which are required to be filed by or with respect to either Company and/or its Subsidiaries on or before the date hereof have been properly prepared and timely filed. All such Tax Returns were correct and complete in all material respects. All material Tax Returns required to be filed by or with respect to either Company and/or its Subsidiaries after the date hereof and on or before the Closing Date shall be properly prepared and timely filed, in a manner consistent with prior years (except where any inconsistency is required by applicable laws and has paid, or made adequate provision for the payment of, all regulations) and applicable laws and regulations. All material Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the by either Company and each Subsidiary its Subsidiaries (whether or not shown on a Tax return) have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedpaid. All material Taxes which the that either Company and each Subsidiary are or its Subsidiaries is or was required by law Law to withhold and or collect have been duly withheld and or collected and, to the extent required, have been paid to the proper Tax authority, and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. properly reported as required under applicable information reporting requirements
(b) Neither the Company nor its Subsidiaries has waived any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Taxes or agreed to any extension of time with respect to a material assessment or Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payabledeficiency.
(c) From the end With respect to all material federal, state and local Tax Returns of each Company and/or its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account Subsidiaries, (i) no audit is in progress and no extension of any Taxes except regular payments required time (other than automatic extensions of time) is in the ordinary course of business force with respect to current operations any date on which any Tax Return was or property presently ownedis to be filed and no waiver or agreement is in force for the extension of time for the assessment or payment of any Tax; and (ii) there is no unassessed deficiency as to which either Company has received written notice or as to which the Companies have Knowledge based upon personal contact with any agent of a taxing authority against either Company.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods Except as set forth in on Section 3.11(d3.17(d) of the Disclosure SchedulesLetter, and neither each Company and/or its Subsidiaries have not agreed to and, to the Knowledge of the Companies, each Company nor and/or its Subsidiaries are not required to make any Subsidiary has been notified regarding any pending audit, except as shown in adjustments pursuant to Section 3.11(d481(a) of the Disclosure ScheduleCode by reason of a change in accounting method or otherwise for any Tax period for which the applicable federal statute of limitations has not yet expired.
(e) Neither There are no material Liens for Taxes upon the Company nor any Subsidiary is a party to any tax sharing agreement assets or arrangementproperties of either Company, except for statutory Liens for current Taxes not yet due and except for Taxes, if any, as set forth are being contested in Section 3.11(e) of the Disclosure Schedulegood faith.
(f) Neither the Company nor any Subsidiary of its Subsidiaries is a party to any agreement providing for the allocation or sharing of Taxes.
(g) There are no special assessments or charges which have been levied, and with respect to which either Company has ever received written notice, against the Real Property that are not reflected on the tax bills issued with respect thereto.
(h) Neither Company nor any of its Subsidiaries (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" has entered into any “reportable transaction” within the meaning of Treasury Regulations Section 382(g1.6011-4(b) that must be disclosed pursuant to Section 6011 of the CodeCode and the Regulations promulgated thereunder, except (ii) is a party to any closing agreement as set forth defined in Section 3.11(f) 7121 of the Disclosure ScheduleCode or any similar provision of state, local, or foreign Law or (iii) has requested any private ruling from any Tax authority.
Appears in 3 contracts
Samples: Purchase Agreement (Peak Resorts Inc), Purchase Agreement (Peak Resorts Inc), Purchase Agreement (American Skiing Co /Me)
Tax Matters. (a) Each of the Company All material returns and each Subsidiary has reports relating to Taxes (as defined in accordance with all Applicable Laws filed all Tax Returns which are Section 9.11 hereof) (including income taxes, withholding taxes and estimated taxes) required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business filed with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns each of the Company and its Subsidiaries (trueor any of their income, correct and complete copies properties or operations as of which the date hereof have been furnished by the Company to VIALOG) duly filed in a timely manner (taking into account all extensions of due dates). All information provided in such returns, declarations and reports is true, correct and complete in all material respects. The Company and fairly its Subsidiaries, as relevant, have paid, or set up reserves in accordance with United States generally accepted accounting principles on their books for, all material Taxes attributable to each of the Company and accurately reflects its Subsidiaries that were due and payable without regard to whether such taxes have been assessed. The Company has made available to Parent and Sub complete and accurate copies of the information purported portions applicable to each of the Company and its Subsidiaries of all income and franchise Tax returns, and any amendments thereto, filed by or on behalf of the Company or any of its Subsidiaries or any member of a group of corporations including the Company or any of its Subsidiaries for the taxable years ending 1992 through 1997.
(b) Adequate provisions in accordance with United States generally accepted accounting principles appropriately and consistently applied to each of the Company and its Subsidiaries have been made in the consolidated financial statements included in the SEC Reports for the payment of all Taxes for which each of the Company and its Subsidiaries may be shown. Federal liable for the periods covered thereby that were not yet due and state income payable as of the dates thereof, regardless of whether the liability for such Taxes is disputed.
(c) Except as set forth in Section 4.11(c) of the Disclosure Letter, all federal, state, local and foreign Tax Returns returns of the Company and its Subsidiaries have been audited by the IRS and settled, or applicable state Authority are closed to assessment, for the taxable periods all years through 1997. Except as set forth in Section 3.11(d4.11(c) of the Disclosure SchedulesLetter, there is no claim or assessment pending, or, to the best of the Company's or any of its Subsidiaries' knowledge, threatened against the Company or any of its Subsidiaries for any alleged material deficiency in Taxes, and neither none of the Company nor or any Subsidiary has been notified regarding of its Subsidiaries knows of any pending audit, except audit or investigation with respect to any liability of the Company or any of its Subsidiaries for Taxes. Except as shown set forth in Section 3.11(d4.11 (c) of the Disclosure ScheduleLetter, there are no agreements in effect to extend the period of limitations for the assessment or collection of any Tax for which the Company or any of its Subsidiaries may be liable.
(d) The Company and each of its Subsidiaries have withheld (and timely paid to the appropriate Governmental Entity) all material amounts for all periods through the date hereof in compliance with all Tax withholding provisions of applicable federal, state, local and foreign laws.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except Except as set forth in Section 3.11(e4.11(e) of the Disclosure ScheduleLetter, there are no liens for Taxes upon any property or assets of the Company or any Subsidiary except liens for Taxes not yet due or the validity of which is being contested in good faith by appropriate proceedings.
(f) Neither the Company nor any Subsidiary has ever Any difference between (i) the adjusted bases and remaining useful lives (for federal income tax purposes) of the tangible and intangible properties of the Company and its Subsidiaries on the books and records of the Company and its Subsidiaries dated as of April 30, 1998, and (ii) the adjusted bases and remaining useful lives (for federal income tax purposes) for such properties on the books and records of the Company and its Subsidiaries on the day prior to the date hereof, will not constitute a Material Adverse Effect.
(g) Except as set forth on Section 4.11(g) of the Disclosure Letter, none of the Company or any of its Subsidiaries have (A) applied for or received a tax ruling (other than a determination with respect to a qualified employee benefit plan), (B) entered into any closing agreement under Section 7121 of the Code, (or any similar provision of state, local or foreign law), (C) filed any election or caused any deemed election under Section 338 of the Code or (D) granted a power of attorney to any person regarding any Tax matter of the Company or any of its Subsidiaries.
(h) No Tax is required to be withheld pursuant to Section 1445 of the Code as a result of any transfers contemplated by this Agreement.
(i) No consent under has been filed relating to the Company or any of its Subsidiaries pursuant to Section 341(f) of the Code.
(j) There is no contract, agreement or intercompany account system in existence under which the Company or any of its Subsidiaries has, or may at any time in the future have, an obligation to contribute to the payment of any portion of a Tax (or pay any amount calculated with reference to any portion of a Tax) of any group of corporations of which the Company or any of its Subsidiaries is or was a part.
(k) Each of the Company and its Subsidiaries has disclosed on its federal income Tax returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code.
(l) None of the assets owned by the Company or any of its Subsidiaries is property that is required to be treated as owned by any other person pursuant to Section 168(f)(8) of the Internal Revenue Code concerning collapsible corporations of 1954, as amended, as in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) undergone an is "ownership changetax-exempt use property" within the meaning of Section 382(g168(h) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 3 contracts
Samples: Merger Agreement (Henkel Acquisition Corp Ii), Merger Agreement (Dep Corp), Merger Agreement (Dep Corp)
Tax Matters. 3.17.1 Except as disclosed in the Disclosure Schedule: (ai) Each of the Company Recap Subco and each Recap Subsidiary has in accordance with all Applicable Laws filed all material Tax Returns which are required to be filed by it, or requests for extensions to file such Tax Returns have been timely filed, granted and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company not expired; (ii) Recap Subco and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Recap Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments as shown on such Tax Returns; (to the extent required to avoid iii) no material underpayment penalties) of estimated claim for unpaid Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required is being asserted in the ordinary course of business writing by a Tax authority with respect to current operations Recap Subco or property presently owned.
any Recap Subsidiary; and (div) The information shown on the federal income all Tax Returns of the Company sharing agreements to which Recap Subco and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Recap Subsidiary is a party ("Tax Sharing Agreements") will be terminated as of the Closing Date and after the Closing Date none of Recap Subco nor any Recap Subsidiary shall have any liability with respect to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure ScheduleTax under any such Tax Sharing Agreement.
(f3.17.2 CRL is a member of Seller Parent's consolidated federal income tax group, eligible to file the Section 338(h)(10) Neither the Company nor any Subsidiary has ever (i) filed a consent Election.
3.17.3 No election under Section 341(f) of the Code concerning collapsible corporations has been or (ii) undergone an will be made to treat Recap Subco or any Recap Subsidiary as a "ownership changeconsenting corporation" within as defined therein.
3.17.4 The accrual for Taxes reflected in the meaning Financial Statements accurately reflects the total amount of Section 382(g) unpaid Taxes arising from or with respect to the CRL Business Assets or the operation or conduct of the CodeCRL Business on or prior to the Closing Date, except whether or not disputed and whether or not presently due and payable, of Recap Subco and each Recap Subsidiary as set forth in Section 3.11(f) of the Disclosure Scheduleclose of the periods covered by the Financial Statements. Adequate accruals and reserves have been made in the Financial Statements and the books and records of each of Recap Subco and each Recap Subsidiary for the payment of all unpaid federal, state, local, foreign and other Taxes arising from or with respect to the CRL Business Assets or the operation or conduct of the CRL Business on or prior to the Closing Date for all periods through the respective dates thereof, whether or not yet due and payable and whether or not disputed.
Appears in 3 contracts
Samples: Recapitalization Agreement (Bausch & Lomb Inc), Recapitalization Agreement (Charles River Laboratories Holdings Inc), Recapitalization Agreement (Charles River Laboratories Inc)
Tax Matters. (a) Each of the Company All Tax Returns required by applicable Law to have been filed by Buyer and each Buyer Subsidiary since January 1, 2015 have been filed when due (taking into account any extensions), and each such Tax Return is complete and accurate and correctly reflects the liability for Taxes. Since January 1, 2015, Buyer and each Buyer Subsidiary has in accordance with withheld and paid all Applicable Laws filed all Tax Returns which are Taxes required to be filedhave been withheld and paid in connection with amounts paid or owing to any third party. Since January 1, and has paid, or made adequate provision for the payment of2015, all Taxes which have or may become that are due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company by Buyer and each Buyer Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedulepaid.
(b) Each There is no audit or other proceeding pending against or with respect to Buyer or any Buyer Subsidiary with respect to any amount of Tax. There are no Liens on any of the Company and each Subsidiary has paid all assets of Buyer or any of the Buyer Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax, other than Liens for Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes not yet due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company Neither Buyer nor any Buyer Subsidiary has made waived any payment on account statute of limitations in respect of Taxes or agreed to any Taxes except regular payments required in the ordinary course extension of business time with respect to current operations any Taxes, which waiver or property presently ownedextension is still open.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (trueExcept as required by Law, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company Buyer nor any Buyer Subsidiary has been notified regarding is a party to any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleTax allocation or sharing agreement.
(e) Neither the Company Buyer nor any Buyer Subsidiary has been included in any “consolidated,” “unitary” or “combined” Tax Return for any taxable period for which the statute of limitations has not expired (other than a group of which Buyer and one or more Buyer Subsidiaries are the only members). Neither Buyer nor any Buyer Subsidiary is a party general partner in any partnership that is material to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Scheduleits business operations.
(f) Neither Within the Company past three years, neither Buyer nor any Buyer Subsidiary has ever been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(g) Neither Buyer nor any Buyer Subsidiary has participated in or been a party to a transaction that, as of the date of this Agreement, constitutes a “listed transaction” for purposes of Section 6011 of the Code (or a similar provision of state Law).
(h) Neither Buyer nor any Buyer Subsidiary has taken any action or has Knowledge of any fact that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(i) filed There has been no disallowance of a consent deduction under Section 341(f162(m) or 280G of the Code concerning collapsible corporations for any amount paid or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Codepayable by Buyer or any Buyer Subsidiary as employee compensation, except as set forth in Section 3.11(f) of the Disclosure Schedulewhether under any Contract, plan, program or arrangement, understanding or otherwise.
Appears in 3 contracts
Samples: Merger Agreement (Carolina Financial Corp), Merger Agreement (Carolina Financial Corp), Merger Agreement (United Bankshares Inc/Wv)
Tax Matters. (a) Each The Company, any predecessor of the Company and each Subsidiary all members for income tax purposes of any affiliated group of corporations of which the Company or any such predecessor corporation is or has in accordance with all Applicable Laws been a member (hereinafter referred to collectively as the "Taxpayers") have duly filed all Tax Returns which are tax reports and returns required to be filedfiled by them, including all federal, state, local and foreign tax returns and reports. The Taxpayers have paid in full all taxes required to be paid by such Taxpayers before such payment became delinquent. The Company has paid, or made adequate provision provision, in conformity with generally accepted accounting principles consistently applied, for the payment ofof all taxes which may subsequently become due. All taxes which any Taxpayer has been required to collect or withhold have been duly collected or withheld and, all Taxes which to the extent required when due, have been or may become due and payable pursuant will be duly paid to said Returns and all other governmental charges and assessments received to datethe proper taxing authority. The Tax Returns consolidated federal income tax returns of the Company and the federal income tax returns of each Subsidiary of the Company whose results of operations are not consolidated in the federal income tax returns of the Company, have been prepared timely filed with the Internal Revenue Service for all periods to and including those expressly set forth in accordance with the Disclosure Schedule, and except to the extent shown therein, all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and deficiencies asserted as a result of such examinations have been paid overor finally settled, and no issue has been raised by the Internal Revenue Service in any such examination which, by application of similar principles, reasonably could be expected to result in a timely manner, to the proper Authorities to the extent due and payableproposed deficiency for any other period not so examined. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there There are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished audits known by the Company to VIALOG) is truebe pending on the Company's tax returns, correct and complete and fairly and accurately reflects the information purported there are no claims which have been or may be asserted relating to be shown. Federal and state income Tax Returns any of the Company and its Subsidiaries Company's tax returns filed for any year which if determined adversely would result in the assertion by any governmental agency of any deficiency. There have been audited no waivers of statutes of limitations by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) Company. None of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) Taxpayers have filed a consent statement under Section 341(f) of the Code concerning (or any comparable state income tax provision) consenting to have the provisions of Section 341(f)(2) (collapsible corporations provisions) of the Code (or (iiany comparable state income tax provision) undergone an "ownership change" within apply to any disposition of any of the meaning Company's assets or property, no property of the Company is property which Acquiring Corporation or the Company is or will be required to treat as owned by another person pursuant to the provisions of Section 382(g168(f) (safe harbor leasing provisions) of the Code. The Company is not a party to any tax-sharing agreement or similar arrangement with any other party. For the purpose of this Agreement, except any federal, state, local or foreign income, sales, use, transfer, payroll, personal property, occupancy or other tax, levy, impost, fee, imposition, assessment or similar charge, together with any related addition to tax, interest or penalty thereon, is referred to as set forth in Section 3.11(f) of the Disclosure Schedulea "tax."
Appears in 3 contracts
Samples: Stock Acquisition Agreement (Industrial Data Systems Corp), Stock Acquisition Agreement (Industrial Data Systems Corp), Stock Acquisition Agreement (Industrial Data Systems Corp)
Tax Matters. (a) Each The Company and each Company Subsidiary has timely filed (taking into account any extension of time within which to file) all material Tax Returns required to have been filed by or with respect to the Company or any Company Subsidiaries, and all such Tax Returns are true, complete and accurate in all material respects. Subject to exceptions as would not be material, no written claim has been made in the past three years by a Governmental Entity in a jurisdiction where the Company or any Company Subsidiary does not file Tax Returns that the Company or any Company Subsidiary is or may be subject to Taxes in such jurisdiction, which claim has not been resolved.
(b) All material Taxes of the Company and each Company Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid (whether or not shown on any Tax Return) have been timely paid, .
(c) No deficiencies for any material amount of Taxes have been proposed or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of assessed in writing against the Company and each or any Company Subsidiary by any Governmental Entity except for deficiencies that have since been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableresolved. Neither the Company nor any Subsidiary of the Company Subsidiaries (i) is the subject of any currently ongoing material Tax audit or other proceeding with respect to Taxes or (ii) has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any material Taxes or agreed to any extension of time with respect to a material Tax liabilities of the Company assessment or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kinddeficiency, including interest and penalties which waiver or extension is currently in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aeffect.
(d) of the Disclosure Schedule. Neither the Company nor any Company Subsidiary has ever been a member of liability under any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority written agreement for the taxable periods set forth sharing, indemnification or allocation of material Taxes (excluding customary Tax indemnification provisions in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleordinary-course commercial Contracts not primarily relating to Taxes).
(e) Neither the Company nor any Company Subsidiary is a party to has any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) material liability for the Taxes of any Person (other than Taxes of the Disclosure ScheduleCompany and the Company Subsidiaries) under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law) or as a transferee or successor.
(f) Subject to exceptions as would not be material, each of the Company and the Company Subsidiaries has withheld and timely paid to the appropriate Governmental Entity all Taxes required by Applicable Law to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(g) Neither the Company nor any Company Subsidiary (nor any predecessor of the Company or a Company Subsidiary) has been a “distributing corporation” or a “controlled corporation” (within the meaning of section 355 of the Code) in a transaction intended to qualify under section 355 of the Code within the past two years.
(h) Neither the Company nor any Company Subsidiary has ever entered into any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(i) There are no Liens with respect to any material Taxes on any of the assets of the Company or the Company Subsidiaries, other than Permitted Liens.
(j) Neither the Company nor any Company Subsidiary will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and filed on or prior to the date hereof; (ii) closing agreement with a consent Governmental Entity executed on or prior to the date hereof; (iii) installment sale or open transaction disposition made on or prior to the date hereof; (iv) prepaid amount received or deferred revenue accrued on or prior to the date hereof, other than such prepaid amounts received or deferred revenue accrued in the ordinary course of business; (v) election under Section 341(f108(i) of the Code concerning collapsible corporations filed on or prior to the date hereof; or (iivi) undergone an "ownership change" within to the meaning of Section 382(g) knowledge of the CodeCompany, except as set forth intercompany transaction described in the Treasury Regulations promulgated under Section 3.11(f) 1502 of the Disclosure ScheduleCode that existed on or prior to the date hereof.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Ch2m Hill Companies LTD), Merger Agreement (Jacobs Engineering Group Inc /De/)
Tax Matters. (a) Each The Company and each Company Subsidiary have timely filed with the appropriate taxing authority all income and other material Tax Returns required to be filed, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and accurate, subject in each case to such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. All Taxes that are shown as due on such filed Tax Returns have been paid.
(b) The Company and each Company Subsidiary have paid all material Taxes (other than the Taxes that are described in Section 3.19(a) of the Company Disclosure Letter) that are due and payable by the Company or any Company Subsidiary, other than any such Taxes that are being contested in good faith by appropriate proceedings, or accrued such Taxes on the books and records of the Company and each relevant Company Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required U.S. GAAP.
(c) Except as has not had and as would not reasonably be expected to be filedhave, and individually or in the aggregate, a Company Material Adverse Effect: (i) neither the Company nor any Company Subsidiary has paid, been notified in writing that it is currently subject to an audit or made adequate provision for the payment of, all similar proceeding with regard to any Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the or any Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, Subsidiary; (ii) to the proper Authorities knowledge of the Company, there are no audits or other similar proceedings pending with regard to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, Taxes or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities Returns of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aSubsidiary; (iii) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Company Subsidiary is presently contesting any material Tax liability in an audit or similar proceeding; and (iv) neither the Company nor any Company Subsidiary has made waived in writing any payment on account statute of any Taxes except regular payments required in the ordinary course of business limitations with respect to current operations or property presently owneda material amount of Taxes for any open tax year.
(d) The information shown on the federal income There are no Tax Returns Liens upon any property or assets of the Company or any Company Subsidiary except Liens for current Taxes not yet due and its Subsidiaries (true, correct payable and complete copies of which have been furnished Liens for Taxes being contested in good faith by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleappropriate proceedings.
(e) Neither the Company nor any Company Subsidiary is liable for the Taxes of any other Person (other than the Company or a party to Company Subsidiary) under Treasury Regulation 1.1502-6 or any tax sharing agreement similar provision of state, local or arrangement, except as set forth in Section 3.11(e) of the Disclosure Scheduleforeign Tax Law.
(f) Neither Since January 1, 2009, neither the Company nor any Company Subsidiary has ever (i) filed constituted either a consent under Section 341(f) of the Code concerning collapsible corporations “distributing corporation” or (ii) undergone an "ownership change" a “controlled corporation” within the meaning of Section 382(g355(a)(1)(A) of the Code, except as set forth in .
(g) The Company has not been a United States real property holding corporation within the meaning of Section 3.11(f897(c)(2) of the Disclosure ScheduleCode during the applicable period described in Section 897(c)(1)(A)(ii) of the Code.
(h) All Taxes that the Company or any Company Subsidiary are (or were) required by Law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder, member or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable except where failures to withhold and collect and to timely pay would not, individually or in the aggregate, have a Company Material Adverse Effect.
(i) There are no material Tax-sharing, allocation, indemnification or similar agreements in effect as between the Company or any Company Subsidiary and any other party under which the Company or any Company Subsidiary could be liable for any material Taxes or other claims of any party(other than customary gross-up or indemnification provisions on credit agreements, derivatives, leases and similar agreements entered into in the ordinary course of business).
Appears in 3 contracts
Samples: Merger Agreement (Central Vermont Public Service Corp), Merger Agreement (Central Vermont Public Service Corp), Merger Agreement (Central Vermont Public Service Corp)
Tax Matters. (a) Each The Company and Company Subsidiaries have filed (or have had filed on their behalf), all material Tax Returns required by applicable Law to be filed by them. All such Tax Returns and amendments thereto are true, complete and correct in all material respects.
(b) The Company and Company Subsidiaries have paid (or have had paid on their behalf) all material Taxes due with respect to any period (or portion thereof) ending prior to or as of the Closing Date.
(c) There are no liens for Taxes upon any property or assets of the Company or any Company Subsidiary, except for liens for Taxes not yet due or for Taxes being contested in good faith for which adequate reserves have been made.
(d) No Federal, state, local or foreign audits, examinations, investigations or other administrative proceedings (such audits, examinations, investigations and each Subsidiary has other administrative proceedings referred to collectively as “Audits”) or court proceedings are presently pending or threatened in accordance writing with all Applicable Laws filed all Tax Returns which are required regard to any Taxes owed or claimed to be filed, and has paid, owed by or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns on behalf of the Company and each or any Company Subsidiary. All amounts finally determined to be owing from any Audit or court proceeding relating to Taxes of the Company or any Company Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles paid.
(e) There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to taxation consistently applied. All the assessment of any Taxes which or deficiencies against the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableor any Company Subsidiary. Neither the Company nor any Company Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have is currently the effect of extending, the applicable statute of limitations in respect beneficiary of any extension of time within which to file any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to Return.
(f) All Tax sharing, indemnity and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature similar arrangements relating to the Company or any Company Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiariesthis Agreement) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (will terminate prior to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure SchedulesClosing Date, and neither the Company nor any Company Subsidiary has been notified regarding will have any pending audit, except as shown in Section 3.11(d) of liability thereunder on or after the Disclosure ScheduleClosing Date.
(eg) All Taxes and other deductions that are required to be collected or withheld by the Company or any Company Subsidiary have been so collected or withheld and have been paid to the appropriate Governmental Entity.
(h) Neither the Company nor any Company Subsidiary is is, nor has at any time been, a party to any tax sharing agreement or arrangement, except as set forth United States real property holding company within the meaning of section 897 of the Code during the applicable period specified in Section 3.11(esection 897(c)(1)(A)(ii) of the Disclosure ScheduleCode.
(fi) The Company and each Company Subsidiary have made available to Parent any Audit report issued within the last three (3) years relating to any Taxes due from the Company or any Company Subsidiary.
(j) Neither the Company nor any Company Subsidiary has ever been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(k) Neither the Company nor any Company Subsidiary has been a party to or otherwise participated in a “listed transaction” as such term is defined in Treasury Regulation section 1.6011-4 (b)(2).
(l) With respect to either the Company or any Company Subsidiary, there has been (i) filed a consent no adjustment that, under Section 341(f) section 481 of the Code concerning collapsible corporations (or similar provisions of foreign, state or local Tax law), could reasonably be expected to have the effect of materially increasing the Tax liability of the Company or any Company Subsidiary in any Tax period (or portion thereof) ending after the Closing Date (“Post-Closing Tax Period”) and (ii) undergone an "ownership change" within no agreement under section 7121 of the meaning Code (or similar agreement entered into for Federal, foreign, state or local Tax law purposes) that could reasonably be expected to have the effect of materially increasing the Tax liability of the Company or any Company Subsidiary in any Post-Closing Tax Period.
(m) Neither the Company nor any Company Subsidiary has received any written assertion, or written threatened assertion, that the Company or any Company Subsidiary has or has had a permanent establishment in any country other than the country in which it is incorporated or in which it maintains its principal place of business.
(n) Neither the Company nor any Company Subsidiary has been a member of any Company Group other than a Company Group of which the Company is the common parent. None of the Company or any Company Subsidiary has any liability for, or any indemnification or reimbursement obligation with respect to, Taxes of any Person (other than the Company or a Company Subsidiary) (i) under Treasury Regulation section 1.1502-6 (or any similar provisions under foreign, state or local Law), (ii) as transferee or successor, (iii) by contract, or (iv) otherwise.
(o) To the knowledge of the Company, there is no income or gain of the Company or any Company Subsidiary (including any predecessor of the Company or any Company Subsidiary) deferred pursuant to Treasury Regulation section 1.1502-13 (or any predecessor proposed, temporary or final regulation) with respect to transactions occurring in taxable years beginning before July 12, 1995.
(p) For purposes of this Agreement, (i) “Tax” or “Taxes” means all Federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding) and including estimated Taxes, including any interest, additions to tax, or penalties applicable thereto; (ii) “Tax Returns” means all Federal, state, local and foreign tax returns, declarations, statements, reports, schedules, forms and information returns and any amended Tax Return relating to Taxes; and (iii) “Company Group” means any “affiliated group” (as defined in Section 382(g1504(a) of the Code) that, except as set forth in Section 3.11(f) at any time on or before the Closing Date, includes or has included the Company or any Company Subsidiary or any predecessor of or successor to the Disclosure ScheduleCompany or any Company Subsidiary (or another such predecessor or successor), or any other group of corporations that, at any time on or before the Closing Date, files or has filed Tax Returns on a combined, consolidated or unitary basis with the Company or any Company Subsidiary or any predecessor of or successor to the Company or any Company Subsidiary (or another such predecessor or successor).
Appears in 3 contracts
Samples: Merger Agreement (Fremont Partners Lp), Merger Agreement (Square D Co), Merger Agreement (Juno Lighting Inc)
Tax Matters. Except as set forth in Schedule 4.20:
(a) Each As of the date of this Agreement, the Company and each Subsidiary has in accordance with all Applicable Laws its Subsidiaries (i) have timely filed all Tax Returns which are required to be filed, filed (after giving effect to any extensions that have been requested by and has paid, granted to such party by the applicable Governmental Authority) and (ii) have paid or made adequate provision for the payment of, caused to be paid on their behalf all Taxes which have or may become due and payable pursuant to said Returns owing, other than those that are being contested in good faith and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary for which adequate reserves have been prepared established in accordance with all Applicable Laws and generally accepted principles applicable GAAP, except, in each case, where the failure to taxation consistently appliedso file or pay would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All Taxes which the Company such Tax Returns are true, correct and each Subsidiary complete in all material respects. There are required by law to withhold and collect have been duly withheld and collected and have been paid overno past, in a timely mannercurrent, pending or, to the proper Authorities to Knowledge of the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendCompany, threatened audits, claims, or otherwise taken or failed proceedings by any Governmental Authority relating to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) . The Company and its Subsidiaries have not waived any statutes of limitation or agreed to any extension of time with respect to any Tax assessment or deficiency. The Company and its Subsidiaries have not received written notice from any Governmental Authority in a jurisdiction where they do not file Tax Returns claiming that they are subject to Tax in that jurisdiction. Notwithstanding anything herein to the contrary, the Company shall pay all transfer agent fees (including, without limitation, any fees required for Tax purposessame-day processing of any instruction letter delivered by the Company), except as set forth stamp taxes and other taxes and duties levied in Section 3.11(a) connection with the delivery to the Purchasers of any shares of Common Stock purchased pursuant hereto other than income and capital gains taxes of the Disclosure SchedulePurchasers that may be incurred in connection with the transactions contemplated hereby.
(b) Each of the The Company and each Subsidiary has paid all Taxes which its Subsidiaries have become due pursuant to its Returns and has paid all installments (to not engaged in any reportable transaction within the extent required to avoid material underpayment penalties) meaning of estimated Taxes due and payableTreasury Regulations Section 1.6011-4(b).
(c) From The Company and its Subsidiaries (A) have not entered into any agreement with any Governmental Authority that would impact the end amount of its most recent fiscal year to Taxes due by them, (B) has never been a member of an affiliated, combined, consolidated or unitary group for purposes of filing any Tax Return (other than a group the date hereof neither common parent of which is the Company nor Company) or has any Subsidiary has made any payment on account liability for the Taxes of any Taxes except regular payments required in the ordinary course other Person (1) under Treasury Regulations Section 1.1502-6 (or any similar provision of business with respect to current operations state, local or property presently ownedforeign law), or (2) as a transferee or successor, by Contract, or otherwise, or (C) is not a party to, or has any liability under, any Tax sharing, Tax allocation, Tax indemnity, or similar agreement or arrangement.
(d) The information shown on Company is not a United States real property holding corporation within the federal income Tax Returns meaning of Section 897 of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleCode.
(e) Neither the The Company nor any Subsidiary is classified as a party to any Subchapter C corporation for U.S. federal tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedulepurposes.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 3 contracts
Samples: Common Stock Purchase Agreement (Ninteenth Investment Co LLC), Common Stock Purchase Agreement (NextDecade Corp.), Common Stock Purchase Agreement (NextDecade Corp.)
Tax Matters. (a) Each of the Company AREH Subs has been properly classified as an entity disregarded as an entity separate from its owner within the meaning of Treasury Regulations Section 301.7701-3(b)(1)(ii), and each Subsidiary applicable state Income Tax Law, at all times since its inception and is not a successor to any other person or entity. Each AREH Subs’ owner for such Federal and applicable state Income Tax purposes has in accordance with been AREH at all Applicable Laws filed all times since such AREH Subs’ respective inception.
(b) All material Tax Returns which are required to be filedfiled with respect to (including without limitation with respect to the income, and has paidbusiness, or made adequate provision for activities of) the payment ofAREH Subs, all Taxes which either separately by any Person or as part of a consolidated, combined or unitary group, have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to datebeen timely filed (taking into account extensions timely filed) with the appropriate Governmental Entity. The All such Tax Returns of the Company are true, correct and each Subsidiary have been prepared complete in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payablematerial respects. Neither the Company AREH Subs nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have AREH is currently the effect of extending, the applicable statute of limitations in respect beneficiary of any extension of time to file any such Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposesReturn, except as set forth in Section 3.11(a7.4(b) of the AREH Disclosure Schedule.
(b) Each of the Company and each Subsidiary Letter. AREH has paid all Taxes which have become due pursuant delivered to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (Buyer true, correct and complete copies of which all material Tax Returns of, or with respect to the income, business, or activities of, the AREH Subs relating to any open Tax Periods that have been furnished filed by the Company to VIALOGAREH Subs.
(c) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns As of the Company Measurement Date, all material Taxes that have become due with respect to (including without limitation with respect to the income, business, or activities of) each of the AREH Subs have been timely paid (whether or not shown on a Tax Return). Each of the AREH Subs is in compliance in all material respects with, and its Subsidiaries records contain all information and documents necessary to comply in all material respects with, all applicable information reporting and Tax withholding requirements under federal, state and local Laws. All material Taxes that any of the AREH Subs is or was required by Law to withhold or collect have been audited by duly withheld or collected and, to the IRS extent required, have been timely paid to the proper Governmental Entity. Each of the AREH Subs has properly requested, received and retained all necessary exemption certificates and other documentation supporting any claimed exemption or applicable state Authority waiver of Taxes on sales or other transactions as to which such AREH Subs would have been obligated to collect or withhold Taxes, except where its failure to do so would not have a Material Adverse Effect on such AREH Sub.
(d) As of the Measurement Date, there are currently no deficiencies for Taxes that have been claimed, proposed or assessed with respect to the taxable periods income, business, or activities of any of the AREH Subs, nor are there any ongoing, pending or threatened claims, audits, investigations, examinations, or subpoenas or requests for information relating to any liability in respect of Taxes with respect to the income, business, or activities of the AREH Subs, nor are there any matters under discussion with any Governmental Entity in respect of Taxes with respect to the income, business, or activities of any AREH Subs. Except as set forth in Section 3.11(d7.4(d) of the AREH Disclosure SchedulesLetter, no power of attorney has been executed by or on behalf of any of the AREH Subs with respect to any matters relating to Taxes that is currently in force, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) no extension or waiver of a statute of limitations relating to Taxes of the Disclosure ScheduleAREH Subs is in effect. No claim has ever been made by any Governmental Entity in a jurisdiction where any AREH Sub does not file Tax Returns that such AREH Sub is or may be subject to taxation in that jurisdiction.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) As of the Disclosure ScheduleMeasurement Date, none of the AREH Subs has requested or received any ruling from any Governmental Entity, or signed any binding agreement with any Governmental Entity, that would increase the Tax liability of any AREH Sub for any Post-Measurement Date Tax Period. Neither Buyer nor the AREH Subs will be required to recognize for Tax purposes in a Post-Closing Tax Period any income or gain that would otherwise have been required to be recognized under the accrual method of accounting in a Pre-Closing Tax Period, as a result of any of the AREH Selling Parties making a change in method of accounting.
(f) Neither As of the Company nor Measurement Date, there are no Liens for Taxes (other than for current Taxes not yet due and payable) upon any Subsidiary of the assets of any of the AREH Subs.
(g) None of the AREH Subs has ever been a member of any affiliated group of corporations which has filed a combined, consolidated or unitary Income Tax Return for federal, state, local or foreign Tax purposes. None of the AREH Subs is liable for the Taxes of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law, as a transferee or successor, by contract, or otherwise.
(h) As of the Measurement Date, there are no Tax sharing, indemnity, allocation or similar agreements in effect as between any of the AREH Subs (or any predecessors thereof), on the one hand, and any other Person, on the other hand. None of the AREH Subs has any contractual obligations to indemnify any other Person with respect to Taxes.
(i) filed AREH is not a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “foreign person” within the meaning of Section 382(g) 1445 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 3 contracts
Samples: Acquisition Agreement (American Real Estate Partners L P), Acquisition Agreement (Pinnacle Entertainment Inc), Acquisition Agreement (Atlantic Coast Entertainment Holdings Inc)
Tax Matters. (a) Each of Except as would not reasonably be expected to have a Material Adverse Effect on the Company and each Subsidiary has in accordance with all Applicable Laws the Subsidiaries (taken as a whole), the Company and the Subsidiaries have timely filed all Tax Returns federal, provincial, local and foreign tax returns which are required to be filedfiled and have paid all taxes required to be paid by them and any other assessment, and has paidfine or penalty levied against them, or made any amounts due and payable to any governmental authority, to the extent that any of the foregoing is due and payable; the Company and the Subsidiaries have established on their books and records reserves which are adequate provision for the payment of, of all Taxes which have or may become taxes not yet due and payable pursuant and there are no liens for taxes on the assets of the Company or the Subsidiaries except for taxes not yet due, and there are no examination, audits or other proceedings of any of the tax returns of the Company or the Subsidiaries which are known by the Company’s management to said Returns be pending, and the Company has withheld or collected all other amounts required to be withheld or collected by it on account of taxes and has remitted all such amounts to the appropriate Governmental Entity (as defined below) when required by law to do so, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental charges and assessments received to date. The Tax Returns agency of any deficiency which would have a Material Adverse Effect on the properties, business or assets of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Subsidiaries (taken as a whole); the Company and each Subsidiary are required by law is not a party to withhold and collect have been duly withheld and collected and have been paid overany indemnification, in allocation or sharing agreement (other than any contractual obligation that does not principally relate to taxes) with respect to any taxes that could give rise to a timely manner, payment or indemnification obligation to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of person other than the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements Subsidiaries. The Company has no liability for all Taxes taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to person (other than the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable Subsidiaries) under any tax legislation, as a Subchapter C corporation under the Codetransferee or successor, except as or otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with any contractual obligation that does not principally relate to taxes. “Governmental Entity” means any domestic or foreign federal, provincial, regional, state, municipal or other government, governmental department, agency, authority or body (whether administrative, legislative, executive or otherwise), court, tribunal, commission or commissioner, bureau, minister or ministry, board or agency, or other regulatory authority, including any securities regulatory authorities and the Company TSX and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleNASDAQ.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 3 contracts
Samples: Underwriting Agreement (Ballard Power Systems Inc.), Equity Distribution Agreement (Ballard Power Systems Inc.), Equity Distribution Agreement (Ballard Power Systems Inc.)
Tax Matters. (a) Each ACE Lo has been properly classified as an entity disregarded as an entity separate from its owner within the meaning of the Company Treasury Regulations Section 301.7701-3(b)(1)(ii), and each Subsidiary applicable state Income Tax Law, at all times since its inception and is not a successor to any other person or entity. ACE Lo’s owner for such Federal and applicable state Income Tax purposes has in accordance with been ACE Hi at all Applicable Laws filed all times since ACE Lo’s inception.
(b) All material Tax Returns which are required to be filedfiled with respect to (including without limitation with respect to the income, and has paidbusiness, or made adequate provision for activities of) ACE Lo, either separately by any Person or as part of a consolidated, combined or unitary group, have been timely filed (taking into account extensions timely filed) with the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to dateappropriate Governmental Entity. The All such Tax Returns of the Company are true, correct and each Subsidiary have been prepared complete in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payablematerial respects. Neither ACE Lo nor ACE Hi is currently the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect beneficiary of any extension of time to file any such Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposesReturn, except as set forth in on Section 3.11(a5.8(b) of the ACE Disclosure Schedule.
(b) Each of the Company and each Subsidiary Letter. ACE Hi has paid all Taxes which have become due pursuant delivered to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (Buyer true, correct and complete copies of which all material Tax Returns of, or with respect to the income, business, or activities of, ACE Lo relating to any open Tax Periods that have been furnished filed by ACE Hi or ACE Lo.
(c) As of the Company Measurement Date, all material Taxes that have become due with respect to VIALOG(including without limitation with respect to the income, business, or activities of) ACE Lo have been timely paid (whether or not shown on a Tax Return). ACE Lo is truein compliance in all material respects with, correct and complete its records contain all information and fairly documents necessary to comply in all material respects with, all applicable information reporting and accurately reflects Tax withholding requirements under federal, state and local Laws. All material Taxes that ACE Lo is or was required by Law to withhold or collect have been duly withheld or collected and, to the extent required, have been timely paid to the proper Governmental Entity. ACE Lo has properly requested, received and retained all necessary exemption certificates and other documentation supporting any claimed exemption or waiver of Taxes on sales or other transactions as to which ACE Lo would have been obligated to collect or withhold Taxes, except where its failure to do so would not have a Material Adverse Effect on ACE Lo.
(d) As of the Measurement Date, (i) there are currently no deficiencies for Taxes that have been claimed, proposed or assessed with respect to the income, business, or activities of ACE Lo, nor are there any ongoing, pending or threatened claims, audits, investigations, examinations, or subpoenas or requests for information purported relating to be shown. Federal any liability in respect of Taxes with respect to the income, business, or activities of ACE Lo, nor are there any matters under discussion with any Governmental Entity in respect of Taxes with respect to the income, business, or activities of ACE Lo, (ii) no power of attorney has been executed by or on behalf of ACE Lo with respect to any matters relating to Taxes that is currently in force, and state income no extension or waiver of a statute of limitations relating to Taxes of ACE Hi or ACE Lo is in effect and (iii) no claim has ever been made by any Governmental Entity in a jurisdiction where ACE Lo does not file Tax Returns of the Company and its Subsidiaries have been audited by the IRS that ACE Lo is or applicable state Authority for the taxable periods set forth may be subject to taxation in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulethat jurisdiction.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) As of the Disclosure ScheduleMeasurement Date, ACE Lo has not requested or received any ruling from any Governmental Entity, or signed any binding agreement with any Governmental Entity, which would increase the Tax liability of ACE Lo for any Post-Measurement Date Tax Period. Neither Buyer nor ACE Lo will be required to recognize for Tax purposes in a Post-Closing Tax Period any income or gain that would otherwise have been required to be recognized under the accrual method of accounting in a Pre-Closing Tax Period, as a result of ACE Hi or ACE Lo making a change in method of accounting.
(f) Neither As of the Company nor Measurement Date, there are no Liens for Taxes (other than for current Taxes not yet due and payable) upon any Subsidiary of the assets of ACE Lo.
(g) ACE Lo has ever not been a member of any affiliated group of corporations which has filed a combined, consolidated or unitary Income Tax Return for federal, state, local or foreign Tax purposes. ACE Lo is not liable for the Taxes of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law, as a transferee or successor, by contract, or otherwise. Notwithstanding the foregoing, ACE Hi has been a member of an affiliated group of corporations which has filed a combined, consolidated or unitary Income Tax Return for federal, state, local or foreign Tax purposes.
(h) As of the Measurement Date, (A) there are no Tax sharing, indemnity, allocation or similar agreements in effect as between ACE Lo (or any predecessors thereof), on the one hand, and any other Person, on the other hand and (B) ACE Lo has no contractual obligations to indemnify any other Person with respect to Taxes.
(i) filed ACE Hi is not a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “foreign person” within the meaning of Section 382(g) 1445 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 3 contracts
Samples: Acquisition Agreement (Pinnacle Entertainment Inc), Acquisition Agreement (American Real Estate Partners L P), Acquisition Agreement (Atlantic Coast Entertainment Holdings Inc)
Tax Matters. (a) Each of the Company and each Subsidiary the Subsidiaries has in accordance with all Applicable Laws timely ----------- filed all Tax Returns tax returns and reports (federal, state and local) as required by law. These returns and reports are true and correct in all material respects. The Company and the Subsidiary have paid all taxes and other assessments due, except those contested by them in good faith and which are required to be filed, and has paid, or made adequate described in Section 3.10 of the Disclosure Letter. The provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns taxes of the Company and each Subsidiary have been prepared or the Subsidiaries as shown in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to Financial Statements is adequate for taxes due or accrued as of the proper Authorities to the extent due and payabledate thereof. Neither the Company nor any Subsidiary has executed elected pursuant to the Internal Revenue Code of 1986, as amended ("CODE"), to be treated as an S corporation or a collapsible corporation pursuant to Section 1362(a) or Section 341(f) of the Code, nor have they made any waiver other elections pursuant to extendthe Code (other than elections that relate solely to methods of accounting, depreciation, or otherwise taken or failed to take any action amortization) that would have the a material effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kindbusiness, including interest and penalties in respect thereofproperties, whether disputed prospects, or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each financial condition of the Company and each Subsidiary has at all times been taxable the Subsidiaries, taken as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedulewhole. Neither the Company nor any Subsidiary the Subsidiaries has ever been a member had any tax deficiency proposed or assessed against it, nor have they executed any waiver of any consolidated group (other than exclusively with statute of limitations on the assessment or collection of any tax or governmental charge. None of the Company's or the Subsidiaries' federal income tax returns and none of their state income or franchise tax or sales or use tax returns have ever been audited by governmental authorities. Since the date of the Financial Statements, the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment adequate provisions on its books of account of any Taxes except regular payments required in the ordinary course of business for all taxes, assessments, and governmental charges with respect to current its business, properties, and operations for such period. The Company and the Subsidiaries have withheld or property presently owned.
(d) The information shown on collected from each payment made to each of its employees, the amount of all taxes, including, but not limited to, federal income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported Act taxes required to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS withheld or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedulescollected therefrom, and neither have paid the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of same to the Disclosure Schedule.
(e) proper tax receiving officers or authorized depositaries. Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" real property holding corporation within the meaning of Section 382(g897(c)(2) of the Code, except as set forth in Section 3.11(f) of the Disclosure ScheduleCode and any regulations promulgated thereunder.
Appears in 3 contracts
Samples: Subscription Agreement (Covad Communications Group Inc), Subscription Agreement (Covad Communications Group Inc), Subscription Agreement (Covad Communications Group Inc)
Tax Matters. (a) Each The Company and each of its Subsidiaries have timely filed or caused to be timely filed (taking into account any applicable extension of time within which to file) with the appropriate taxing authorities all material tax returns, statements, forms and reports (including elections, declarations, disclosures, schedules, estimates and information Tax Returns) for Taxes (“Tax Returns”) that are required to be filed by, or with respect to, the Company and its Subsidiaries. The Tax Returns accurately reflect all material liability for Taxes of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filedits Subsidiaries, and has paidtaken as a whole, or made adequate provision for the payment of, all periods covered thereby.
(b) All material Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns liabilities of the Company and each Subsidiary its Subsidiaries shown due under the Tax Returns with respect to the income, assets or operations of the Company and its Subsidiaries for all taxable years or other taxable period or portion thereof that end on or before the Closing Date have been prepared paid in full or will be paid in full pursuant to the Plan or, to the extent not yet due, have been accrued and fully provided for in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which GAAP, or will be provided for when required under GAAP on the financial statements of the Company included in the Company SEC Documents.
(c) Except for proofs of claim filed in connection with the Chapter 11 Proceedings, none of the Company and each Subsidiary are any of its Subsidiaries has received any written notices from any taxing authority relating to any issue that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(d) Except as set forth on Schedule 4.21(d), all material Taxes that the Company and its Subsidiaries (taken as a whole) were (or was) required by law Law to withhold and or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly withheld and collected or collected, and have been timely paid over, in a timely manner, to the proper Authorities authorities to the extent due and payable. Neither .
(e) None of the Company nor and any Subsidiary of its Subsidiaries has executed been included in any waiver “consolidated,” “unitary” or “combined” Tax Return provided for under any Law with respect to extend, or otherwise taken or failed to take Taxes for any action that would have taxable period for which the effect of extending, the applicable statute of limitations has not expired (other than a group of which the Company and/or its current or past Subsidiaries are or were the only members).
(f) There are no tax sharing, indemnification or similar agreements in respect of any Tax liabilities of effect as between the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters its Subsidiaries or any basis predecessor or Affiliate thereof and any other party (including any predecessors or Affiliates thereof) under which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as its Subsidiaries is a Subchapter C corporation under the Code, except as party to or otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group bound by (other than exclusively with the Company and its Subsidiariessuch agreements (i) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required that are entered in the ordinary course of business with respect or (ii) that are not expected to current operations or property presently ownedresult in a liability for Taxes that is material to the Company and its Subsidiaries taken as a whole).
(dg) The information shown on None of the federal income Company and any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution occurring during the last five years in which the parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable.
(h) There is no outstanding audit, assessment, dispute or claim concerning any material Tax Returns liability of the Company and its Subsidiaries (truetaken as a whole) claimed, correct and complete copies pending or raised by an authority in writing, the resolution of which have been furnished by would reasonably be expected to have, individually or in the Company aggregate, a Material Adverse Effect.
(i) There are no material Liens with respect to VIALOG) is true, correct and complete and fairly and accurately reflects Taxes upon any of the information purported to be shown. Federal and state income Tax Returns assets or properties of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules(taken as a whole), and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleother than Permitted Liens.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 3 contracts
Samples: Backstop Commitment Agreement (Legacy Reserves Inc.), Backstop Commitment Agreement (Legacy Reserves Inc.), Backstop Commitment Agreement (Legacy Reserves Inc.)
Tax Matters. (a) Each member of the Company and each Subsidiary Group has in accordance with timely filed (taking into account any extension of time within which to file) all Applicable Laws filed all material Tax Returns which are required to be filedhave been filed by or with respect to the Company Group, and all such Tax Returns are true, complete and accurate in all material respects. Except as would not reasonably be expected to be material to the Company Group, no claim has paid, or been made adequate provision for in the payment of, all Taxes which have past six (6) years in writing by a Governmental Entity in a jurisdiction where the Company Group does not file Tax Returns that any member of the Company Group is or may become be subject to Taxes in such jurisdiction.
(b) All material amounts of Taxes of the Company Group due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The (whether or not shown on any Tax Returns Return) have been timely paid.
(c) No deficiencies for any material amount of Taxes have been proposed or assessed in writing against any member of the Company and each Subsidiary Group by any Governmental Entity except for deficiencies that have since been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedresolved. All Taxes which No member of the Company and each Subsidiary are required by law Group (i) is the subject of any currently pending or ongoing Tax audit or other administrative or judicial Proceeding with respect to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor Taxes or (ii) has waived any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Taxes or agreed to any extension of time with respect to a material Tax liabilities assessment or deficiency, which waiver or extension is currently in effect.
(d) No member of the Company Group is a party to, and has no material obligation or liability under, any Subsidiary agreement or arrangement for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part sharing, reimbursement, indemnification or allocation of the Financial Statements for all Taxes of any kindTaxes, including interest and penalties in respect thereof, whether disputed any tax receivable agreement or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group similar agreement (other than exclusively with the Company and its Subsidiaries) customary provisions for Tax purposesTaxes contained in credit, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required lease or other commercial agreements entered into in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies primary purposes of which have been furnished by the Company do not relate to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleTaxes).
(e) Neither No member of the Company nor any Subsidiary Group is, or has been, a member of a group (other than a group the common parent of which is the Company) filing a party to any tax sharing agreement consolidated, combined, affiliated, unitary or arrangement, except as set forth in Section 3.11(e) similar income Tax Return. No member of the Disclosure ScheduleCompany Group has any material liability for the Taxes of any Person (other than Taxes of the Company Group) under Treasury Regulation section 1.1502-6 (or any similar provision of state, local or foreign law), or as a transferee or successor, by Contract or otherwise (other than customary provisions for Taxes contained in credit, lease or other commercial agreements entered into in the ordinary course of business the primary purposes of which do not relate to Taxes).
(f) Neither No member of the Company nor Group will be required to include a material item of income (or exclude a material item of deduction) in any Subsidiary has ever taxable period (or portion thereof) beginning after the Closing Date as a result of any (i) change in method of accounting or closing agreement with any Governmental Entity filed or made on or prior to the date of this Agreement, (ii) any prepaid amount received or deferred revenue accrued on or prior to the date of this Agreement, or (iii) installment sale or open transaction disposition made on or prior to the date of this Agreement.
(g) Except as would not reasonably be expected to be material to the Company Group, each member of the Company Group has withheld and, to the extent required by Law, paid to the appropriate Governmental Entity all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.
(h) No member of the Company Group nor any predecessor of any member of the Company Group has been a consent “distributing corporation” or a “controlled corporation” (within the meaning of section 355 of the Code) in a transaction intended to qualify under section 355 of the Code within the past two (2) years.
(i) No member of the Company Group has entered into any “listed transaction” or any “transaction of interest” within the meaning of Treasury Regulation Section 341(f1.6011-4(b).
(j) No member of the Company Group has been a United States real property holding corporation within the meaning of section 897(c)(2) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within during the meaning of Section 382(gapplicable period specified in section 897(c)(1)(A)(ii) of the Code, except as set forth in Section 3.11(f.
(k) There are no Liens with respect to any material Taxes on any of the Disclosure Scheduleassets of the Company Group other than Permitted Liens.
Appears in 3 contracts
Samples: Merger Agreement (Jetblue Airways Corp), Merger Agreement (Spirit Airlines, Inc.), Merger Agreement (Jetblue Airways Corp)
Tax Matters. Except as set forth on Schedule 3.2(i):
(ai) Each of the Company and each Subsidiary has in accordance with all Applicable Laws its Subsidiaries has: (a) timely filed all income Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The material Tax Returns required to be filed by or with respect to such entities or with respect to the assets of the Company or the Business, and all such Tax Returns have been completed in material compliance with all applicable Laws. All material Taxes owed by each of the Company and each Subsidiary have been prepared in accordance its Subsidiaries or with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, respect to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities assets of the Company or the Business (whether or not shown on any Subsidiary for Tax Return) have been timely paid in full.
(ii) There are no Liens relating or attributable to Taxes encumbering (and no Taxing Authority has threatened in writing to encumber) the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes assets of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Codeits Subsidiaries, except as otherwise set forth for statutory Liens for current Taxes not yet due and payable, or Liens for Taxes being contested in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth good faith in Section 3.11(a) of the Disclosure Scheduleappropriate proceedings.
(biii) Each of the Company and each Subsidiary its Subsidiaries has timely withheld and paid over to the appropriate Taxing Authority all material Taxes which have become due pursuant to its Returns and has paid all installments (to the extent it is required to avoid material underpayment penalties) withhold from amounts paid or owing to any employee, independent contractor, shareholder, creditor, holder of estimated Taxes due securities or other third party, and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns each of the Company and its Subsidiaries has materially complied with all information reporting (trueincluding Internal Revenue Service Form 1099) and backup withholding requirements, correct and complete copies including maintenance of which have been furnished required records with respect thereto.
(iv) There are no: (a) pending written claims by any Governmental Authority with respect to Taxes relating or attributable to any of the Company or its Subsidiaries; or (b) deficiencies for any Tax, claim for additional Taxes, or other dispute or claim relating or attributable to VIALOGany Tax liability of any of the Company or its Subsidiaries claimed, issued or raised in writing by any Taxing Authority.
(v) None of the Company or any of its Subsidiaries have waived any statute of limitations for the period of assessment or collection of Taxes, or agreed to or requested any extension of time for the period with respect to a Tax assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired.
(vi) None of the Company or its Subsidiaries (i) is truea party to, correct and complete and fairly and accurately reflects is bound by, or has any obligation under, any Tax Sharing Agreement, or (ii) has any potential liability or obligation (for Taxes or otherwise) to any Person as a result of, or pursuant to, any such Tax Sharing Agreement.
(vii) No power of attorney that currently is in effect has been granted by any of the information purported to be shownCompany or its Subsidiaries.
(viii) None of the Company or its Subsidiaries has any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee, successor or as a result of similar liability, operation of Law, by contract (including any Tax Sharing Agreement) or otherwise. Federal and state None of the Company or its Subsidiaries has been included in any “consolidated”, “unitary”, “combined” or similar income Tax Return provided for under the United States or any non-U.S. jurisdiction or any state.
(ix) None of the Company or its Subsidiaries has entered into any transaction identified as a “listed transaction,” within the meaning of Treasury Regulations Sections 1.6011-4(b)(2).
(x) No written claim has been made by a Taxing Authority in a jurisdiction where any of the Company or its Subsidiaries does not file Tax Returns and pay Taxes that the Company or such Subsidiary is or may be subject to any Tax Return filing requirements or taxation by that jurisdiction.
(xi) For all periods since formation, (a) the Company has been treated for U.S. federal income tax purposes as a partnership and not as an corporation, association or a publicly traded partnership (within the meaning of Section 7704(b) of the Code and the Treasury Regulations thereunder), (b) Beatport SARL and Sound to Sample LTD have each been treated for U.S. federal income tax purposes as a corporation, (c) Beatport Japan, LLC has been treated as an entity disregarded from its owner for U.S. federal income tax purposes, and (d) none of the Company or any of its Subsidiaries have taken any position inconsistent with such classifications.
(xii) Notwithstanding any other provision of this Agreement, the representations contained in this Section 3.2(i), Section 3.2(m), and Section 3.2(g)(xi) shall constitute the sole and exclusive representations of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulewith respect to Taxes.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (SFX Entertainment, INC), Merger Agreement (SFX Entertainment, INC)
Tax Matters. Except as disclosed by Peak or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Peak:
(ai) Each Peak and each of the Company Peak Subsidiaries has duly and each Subsidiary timely made or prepared all Tax Returns required to be made or prepared by it, has in accordance with all Applicable Laws duly and timely filed all Tax Returns which are required to be filedfiled by it with the appropriate Governmental Entity and has, in all material respects, completely and has paid, correctly reported all income and all other amounts or made adequate provision for information required to be reported thereon.
(ii) Peak and each of the payment of, Peak Subsidiaries has: (A) duly and timely paid all Taxes which have or may become due and payable pursuant to said Returns by it; (B) duly and timely withheld all Taxes and other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are amounts required by law Law to withhold be withheld by it and collect have been has duly withheld and collected and have been paid over, in a timely manner, remitted to the proper Authorities appropriate Governmental Entity such Taxes and other amounts required by Law to be remitted by it; and (C) duly and timely collected all amounts on account of sales or transfer taxes, including goods and services, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Entity any such amounts required by Law to be remitted by it.
(iii) The charges, accruals and reserves for Taxes reflected on the Peak Financial Statements (whether or not due and whether or not shown on any Tax Return but excluding any provision for deferred income taxes) are adequate under Canadian GAAP to cover Taxes with respect to Peak and the Peak Subsidiaries (to the extent due and payable. Neither that such entitles are consolidated in the Company nor any Subsidiary has executed any waiver to extendPeak Financial Statements) accruing through the date hereof.
(iv) There are no proceedings, investigations, audits, assessments, reassessments or otherwise taken claims now pending or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of Peak, threatened against any of Peak or the Company there are no transactions or matters or any basis which might or could result Peak Subsidiaries that propose to assess Taxes in additional Taxes of any nature addition to those reported in the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleReturns.
(bv) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account No waiver of any Taxes except regular payments required in the ordinary course statute of business limitations with respect to current operations Taxes has been given or property presently owned.
(d) The information shown on the federal income Tax Returns requested with respect to Peak or any of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure SchedulePeak Subsidiaries.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Business Combination Agreement (New Gold Inc. /FI), Business Combination Agreement (Metallica Resources Inc)
Tax Matters. (a) Each The Company and each Company Subsidiary have timely filed with the appropriate taxing authorities all Tax Returns required to be filed through the date hereof, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and correct. The Company and each Company Subsidiary have paid on a timely basis all Taxes (whether or not actually shown as due on such Tax Returns).
(b) Except as set forth on Section 3.18(b) of the Company and each Disclosure Schedule, neither the Company nor any Company Subsidiary has in accordance with all Applicable Laws filed all requested any extension of time within which to file any Tax Returns Return, which are required to be Tax Return has not yet been filed, and has paidor executed or filed any power of attorney with any taxing authority, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns is still in effect.
(c) Except as set forth on Section 3.18(c) of the Company and each Subsidiary have been prepared in accordance Disclosure Schedule, there are no audits or other administrative proceedings or court proceedings presently pending with all Applicable Laws and generally accepted principles applicable regard to taxation consistently applied. All any Taxes which of the Company or any Company Subsidiary and each neither the Company nor any Company Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payablehas received notice of any audits or proceedings. Neither the Company nor any Company Subsidiary has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency for any open tax year, which waiver or extension remains in respect of effect.
(d) There are no Liens for Taxes other than Permitted Liens upon any Tax liabilities assets of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Subsidiary.
(e) The Company and each Company Subsidiary has at have withheld and paid all times Taxes required to have been taxable withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder, or other third party.
(f) Except with respect to the affiliated group of corporations of which the Company is the common parent (as a Subchapter C corporation under defined in Section 1504 of the Code), except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither neither the Company nor any Company Subsidiary has ever been a member of any consolidated an affiliated group of corporations (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in that term is used by Section 3.11(a) 1504 of the Disclosure Schedule.
(bCode) Each or any comparable provision of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither state, local or foreign law. Neither the Company nor any Company Subsidiary has made is a party to any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations joint venture, partnership or property presently ownedother arrangement that is treated as a partnership for U.S. federal income tax purposes.
(dg) The information shown on No written claim has ever been made by any taxing authority in a jurisdiction where the federal income Company or any Company Subsidiary does not file Tax Returns of that the Company and its Subsidiaries (true, correct and complete copies of which have been furnished or any Company Subsidiary is or may be subject to taxation by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulethat jurisdiction.
(eh) Neither the Company nor any Company Subsidiary is a party has operating losses or other tax attributes presently subject to any tax sharing agreement limitation under Sections 279, 382, 383, or arrangement, except as set forth in Section 3.11(e) 384 of the Disclosure ScheduleCode, or the federal consolidated return regulations.
(fi) Neither the Company nor any Company Subsidiary has ever will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any of the following that occurred or exists on or prior to the Closing Date: (i) filed a consent under “closing agreement” as described in Section 341(f) 7121 of the Code concerning collapsible corporations (or any corresponding or similar provision of state, local or non-U.S. income Tax legal requirement); (ii) undergone an "ownership change" within the meaning of installment sale or open transaction; (iii) a prepaid amount; (iv) a Section 382(g481 adjustment; or (v) of the Code, except as set forth in an intercompany item under Treasury Regulation Section 3.11(f) of the Disclosure Schedule1.1502-13 or an excess loss account under Treasury Regulation Section 1.1502-19.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dreams Inc), Merger Agreement (Dreams Inc)
Tax Matters. Except as disclosed by Glamis or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to Glamis:
(ai) Each of Glamis, the Company Glamis Subsidiaries and, to the knowledge of Glamis, the Glamis Significant Interest Companies, has duly and each Subsidiary timely made or prepared all Tax Returns required to be made or prepared by it, has in accordance with all Applicable Laws duly and timely filed all Tax Returns which are required to be filedfiled by it with the appropriate Governmental Entity and has, in all material respects, completely and has paid, or made adequate provision for the payment of, correctly reported all Taxes which have or may become due and payable pursuant to said Returns income and all other governmental charges and assessments received amounts or information required to date. The Tax Returns be reported thereon.
(ii) Each of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extendingGlamis, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kindGlamis Subsidiaries and, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of Glamis, the Company there are no transactions or matters or any basis which might or could result in additional Glamis Significant Interest Companies, has (A) duly and timely paid all Taxes of any nature due and payable by it, (B) duly and timely withheld all Taxes and other amounts required by Law to be withheld by it and has duly and timely remitted to the Company appropriate Governmental Entity such Taxes and other amounts required by Law to be remitted by it, and (C) duly and timely collected all amounts on account of sales or transfer taxes, including goods and services, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Entity any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduleamounts required by Law to be remitted by it.
(biii) Each The charges, accruals and reserves for Taxes reflected on the Glamis Financial Statements (whether or not due and whether or not shown on any Tax Return but excluding any provision for deferred income taxes) are, in the opinion of Glamis, adequate under Canadian GAAP to cover Taxes with respect to Glamis, the Company and each Subsidiary has paid all Taxes which have become due pursuant Glamis Subsidiaries and, to its Returns and has paid all installments the knowledge of Glamis, the Glamis Significant Interest Companies (to the extent required to avoid material underpayment penaltiesthat such entitles are consolidated in the Glamis Financial Statements) of estimated Taxes due and payableaccruing through the date hereof.
(civ) From the end of its most recent fiscal year There are no proceedings, investigations, audits, assessments, reassessments or claims now pending or to the date hereof neither knowledge of Glamis, threatened against any of Glamis, the Company nor any Subsidiary has made any payment on account Glamis Subsidiaries or, to the knowledge of Glamis, the Glamis Significant Interest Companies that propose to assess Taxes in addition to those reported in the Tax Returns.
(v) No waiver of any Taxes except regular payments required in the ordinary course statute of business limitations with respect to current operations Taxes has been given or property presently owned.
(d) The information shown on the federal income Tax Returns requested with respect to Glamis, any of the Company and its Glamis Subsidiaries (trueor, correct and complete copies to the knowledge of which have been furnished by the Company to VIALOG) is trueGlamis, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns any of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleGlamis Significant Interest Companies.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Amending Agreement (Glamis Gold LTD), Arrangement Agreement (Glamis Gold LTD)
Tax Matters. (a) Each There are no material Taxes due and payable by the Company or any Company Subsidiary which have not been timely paid. All Tax Returns required to be filed by, or on behalf of, the Company and the Company Subsidiaries have been timely filed, and all such Tax Returns were true, correct and complete in all material respects. The unpaid Taxes of the Company and each Subsidiary has the Company Subsidiaries (i) did not as of the filing date of the 2011 Form 10-K exceed the reserve for Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth in the 2011 Form 10-K and (ii) will not exceed that reserve in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, the past custom and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns practice of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, Subsidiaries in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any filing Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheetReturns. Each of the Company and each Company Subsidiary has at duly and timely withheld and paid over to the appropriate Governmental Body all times been taxable material Taxes and other amounts required to be so withheld and paid over for all periods under all applicable Laws. Except for Liens for Taxes not yet due and payable, no Liens for Taxes exist upon the assets of the Company or any of the Company Subsidiaries. Except as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a2(r) of the Disclosure Schedule, no material audits, investigations or other proceedings are pending or being conducted with respect to Taxes of the Company or the Company Subsidiaries. Except as set forth in Section 2(r) of the Disclosure Schedule, there are in effect no waivers of applicable statutes of limitations with respect to Taxes for any year. As of the date hereof, neither the Company nor any of the Company Subsidiaries (i) has ever been a member of an affiliated group filing a consolidated Tax Return (other than an affiliated or consolidated group of which the Company was the parent) or (ii) has any liability for Taxes of any Person arising from the application of Treasury Regulation section 1.1502-6 or any analogous provision of state, local or foreign Law, or as a transferee or successor, by contract, or otherwise. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its SubsidiariesSubsidiaries will be required to include amounts in income, or exclude items of deduction, in a taxable period beginning after the date of the Closing as a result of (i) for Tax purposesa change in method of accounting occurring prior to the date of the Closing; (ii) an installment sale or open transaction arising in a taxable period (or portion thereof) ending on or before the date of the Closing; (iii) a prepaid amount received, except as set forth in or paid, prior to the date of the Closing; (iv) deferred gains arising prior to the date of the Closing; or (v) an election under Section 3.11(a108(i) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shownCode. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Company Subsidiary is a party to, or is bound by or subject to any tax obligation under any Tax sharing or Tax indemnity agreement or similar contract or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) . Neither the Company nor any Company Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" engaged in any “listed transaction” within the meaning of Treasury Regulation Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule1.6011-4(b)(2).
Appears in 2 contracts
Samples: Preferred Stock Subscription Agreement (Lighting Science Group Corp), Preferred Stock Subscription Agreement (Lighting Science Group Corp)
Tax Matters. Except as set forth on Schedule 4.09:
(a) Each of The Company, Newco and the Company and each Subsidiary has in accordance with all Applicable Laws Sold Subsidiaries have filed all material Tax Returns which that are required to be filed, filed by them (and has paid, or made adequate provision for the payment of, all such Tax Returns are correct and complete in all material respects) and have paid all such Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to dateby the Company, Newco or the Sold Subsidiaries (whether or not shown as due on such Tax Returns). The No written claim has ever been made by a taxing authority in a jurisdiction in which the Company, Newco or any of the Sold Subsidiaries do not file Tax Returns that the Company, Newco or any of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable Sold Subsidiaries is or may be subject to taxation consistently appliedby that jurisdiction. All Taxes which the Company and each Subsidiary Company, Newco or the Sold Subsidiaries are required by law obligated to withhold and collect from amounts owing to any employee, creditor or third party have been duly withheld and collected and have been fully paid overor properly accrued.
(b) There is no dispute or claim concerning any material Tax liability of the Company, Newco or the Sold Subsidiaries claimed or raised by any taxing authority in a timely mannerwriting. None of the Company, to the proper Authorities to the extent due and payable. Neither the Company Newco nor any Subsidiary of the Sold Subsidiaries has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Taxes beyond the date hereof or agreed to any extension of time beyond the date hereof with respect to a Tax assessment or deficiency. None of the Company, Newco nor any of the Sold Subsidiaries is a party to any Tax liabilities of the Company allocation or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group sharing agreement (other than exclusively with (i) agreements solely among the Company Company, Newco and its the Sold Subsidiaries, (ii) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required commercial agreements entered into in the ordinary course of business with respect to current operations not primarily about Taxes, and (iii) agreements entered into in the ordinary course of business providing for the allocation or payment of property presently ownedTaxes).
(c) None of the Company, Newco nor any of the Sold Subsidiaries has any liability for the Taxes of any Person (other than the Company, Newco and the Sold Subsidiaries) under Treasury Regulation § 1.1502-6 or any similar provision under state, local or foreign Tax law, or as a transferee or successor, by contract, or otherwise.
(d) The information shown on the federal income Tax Returns None of the Company and its Subsidiaries (trueCompany, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns Newco nor any of the Company and its Sold Subsidiaries have been audited by is a party to any contract that will, individually or collectively, result in the IRS or applicable state Authority for payment of any amount in connection with the taxable periods set forth in Section 3.11(d) consummation of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in transactions contemplated by this Agreement that would not be deductible by reason of Section 3.11(d) 280G of the Disclosure ScheduleCode.
(e) Neither None of the Company Company, Newco nor any Subsidiary is of the Sold Subsidiaries will be required as a party to result of (i) a change in method of accounting for a Pre-Closing Tax Period, (ii) use of an improper method of accounting for a Pre-Closing Tax Period, (iii) any tax sharing agreement or arrangement, except "closing agreement" as set forth described in Section 3.11(e7121 of the Code or any similar provision under state, local or foreign Tax law, (iv) any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code or any similar provision of state, local or foreign Tax law, (v) any installment sale or open transaction disposition made on or before the Closing Date, (vi) the receipt of any prepaid revenue prior to the Closing Date, or (vii) election under Section 108(i) of the Disclosure ScheduleCode, to include any item of income or exclude any item of deduction for any Tax period (or portion thereof) beginning after the Closing Date that would not have otherwise so been included or excluded as the case may be.
(f) Neither None of the Company Company, Newco nor any Subsidiary of the Sold Subsidiaries has ever distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code.
(ig) filed None of the Company, Newco nor any of the Sold Subsidiaries has been a consent under party to any "reportable transaction" as defined in Section 341(f6707A(c)(1) of the Code concerning collapsible corporations or and Treasury Regulations § 1.6011-4(b).
(iih) undergone an "ownership change" None of the Company, Newco nor any of the Sold Subsidiaries has a permanent establishment (within the meaning of Section 382(gan applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the one in which it is organized.
(i) The Company and each of the Code, except as set forth in Section 3.11(f) Sold Subsidiaries that is organized under the Laws of the Disclosure ScheduleUnited States has been since its formation properly classified as either a partnership or a "disregarded entity" for U.S. federal income Tax purposes and no election has been made pursuant to Treasury Regulation § 301.7701-3(g) to treat the Company or any such Sold Subsidiary as an association taxable as a corporation.
(j) Notwithstanding anything to the contrary in this Agreement, no representation or warranty in this Section 4.09 is made with respect to the existence, amount or usability of any net operating losses, capital losses, tax basis or other tax attribute of the Company, Newco or any Sold Subsidiary.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Steel Partners Holdings L.P.), Stock Purchase Agreement (Handy & Harman Ltd.)
Tax Matters. Except as set forth in Schedule 5.20:
(a) Each As of the applicable Closing Date, the Company and each Subsidiary has in accordance with all Applicable Laws its Subsidiaries (i) have timely filed all Tax Returns which are required to be filed, filed (after giving effect to any extensions that have been requested by and has paid, granted to such party by the applicable Governmental Authority) and (ii) have paid or made adequate provision for the payment of, caused to be paid on their behalf all Taxes which have or may become due and payable pursuant to said Returns owing, other than those that are being contested in good faith and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary for which adequate reserves have been prepared established in accordance with all Applicable Laws and generally accepted principles applicable GAAP, except, in each case, where the failure to taxation consistently appliedso file or pay would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All Taxes which the Company such Tax Returns are true, correct and each Subsidiary complete in all material respects. There are required by law to withhold and collect have been duly withheld and collected and have been paid overno past, in a timely mannercurrent, pending or, to the proper Authorities to Knowledge of the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendCompany, threatened audits, claims, or otherwise taken or failed proceedings by any Governmental Authority relating to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) . The Company and its Subsidiaries have not waived any statutes of limitation or agreed to any extension of time with respect to any Tax assessment or deficiency. The Company and its Subsidiaries have not received written notice from any Governmental Authority in a jurisdiction where they do not file Tax Returns claiming that they are subject to Tax in that jurisdiction. Notwithstanding anything herein to the contrary, the Company shall pay all transfer agent fees (including, without limitation, any fees required for Tax purposessame-day processing of any instruction letter delivered by the Company), except as set forth stamp taxes and other taxes and duties levied in Section 3.11(a) connection with the delivery to the Purchaser other than income and capital gains taxes of the Disclosure SchedulePurchaser that may be incurred in connection with the transactions contemplated hereby.
(b) Each of the The Company and each Subsidiary has paid all Taxes which its Subsidiaries have become due pursuant to its Returns and has paid all installments (to not engaged in any reportable transaction within the extent required to avoid material underpayment penalties) meaning of estimated Taxes due and payableTreasury Regulations Section 1.6011-4(b).
(c) From the end The Company and each of its most recent fiscal year to Subsidiaries (A) has not entered into any agreement with any Governmental Authority that would impact the date hereof neither amount of Taxes due by it, (B) has never been a member of an affiliated, combined, consolidated or unitary group for purposes of filing any Tax Return (other than a group the Company nor any Subsidiary common parent of which is the Company) and has made any payment on account no liability for the Taxes of any Taxes except regular payments required in the ordinary course other Person (1) under Treasury Regulations Section 1.1502-6 (or any similar provision of business with respect to current operations state, local or property presently ownedforeign law), or (2) as a transferee or successor, by contract, or otherwise, and (C) is not a party to, or has any liability under, any Tax sharing, Tax allocation, Tax indemnity, or similar agreement or arrangement.
(d) The information shown on Company is not a United States real property holding corporation within the federal income Tax Returns meaning of Section 897 of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleCode.
(e) Neither the The Company nor any Subsidiary is classified as a party to any Subchapter C corporation for U.S. federal tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedulepurposes.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (NextDecade Corp.), Common Stock Purchase Agreement (TotalEnergies SE)
Tax Matters. (ai) Each The Company and each of the Company Subsidiaries has duly and each Subsidiary has in accordance with timely filed or caused to be filed (including all Applicable Laws filed applicable extensions) all federal, state, foreign and local Tax Returns which are required to be filed, filed by it or with respect to it (all such Tax Returns being accurate and complete in all respects) and has paidduly and timely paid or caused to be paid on its behalf all Taxes required to be paid by it (whether or not shown to be due on such Tax Returns). Through the date hereof, the Company and the Company Subsidiaries do not have any liability for Taxes in excess of the amount reserved or provided for on their financial statements. The Company and each of the Company Subsidiaries has made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements Balance Sheet for all accrued Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes yet due and payable.
(cii) From the end of its most recent fiscal year to the date hereof neither No jurisdiction where the Company nor any Subsidiary and the Company Subsidiaries do not file a Tax Return has made a claim in writing that any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company Subsidiaries is required to VIALOGfile a Tax Return in such jurisdiction.
(iii) is true, correct and complete and fairly and accurately reflects No Liens for Taxes exist with respect to any of the information purported to be shown. Federal and state income Tax Returns assets of the Company and its the Company Subsidiaries, except for statutory Liens for Taxes not yet due and payable.
(iv) There are no audits, examinations, disputes or proceedings pending or threatened in writing with respect to, or claims or assessments asserted or threatened in writing for, any Taxes of the Company or any of the Company Subsidiaries.
(v) There is no waiver or extension of the application of any statute of limitations of any jurisdiction regarding the assessment or collection of any Tax with respect to the Company and any of the Company Subsidiaries, which waiver or extension is in effect.
(vi) All Taxes required to be withheld, collected or deposited by or with respect to the Company and each of the Company Subsidiaries have been audited timely withheld, collected or deposited, as the case may be, and to the extent required by applicable Law, have been paid to the IRS relevant Governmental Entity. The Company and each of the Company Subsidiaries have complied in all material respects with all information reporting and backup withholding provisions of applicable Law, including the collection, review and retention of any required withholding certificates or applicable state Authority for the taxable periods set forth in comparable documents (including with respect to deposits) and any notice received pursuant to Section 3.11(d3406(a)(1)(B) or (C) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleCode.
(evii) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure ScheduleCompany Subsidiaries has participated in any reportable transaction, as defined in Treasury Regulation Section 1.6011-4(b)(1).
(fviii) Neither the Company nor any Subsidiary of the Company Subsidiaries is a party to, is bound by, or has ever any obligation under, any Tax sharing, allocation, indemnity or similar agreements or arrangement that obligates it to make any payment computed by reference to the Taxes, taxable income or taxable losses of any other Person.
(ix) Neither the Company nor any of the Company Subsidiaries (i) filed has been a consent under Section 341(fmember of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" has any liability for the Taxes of any Person (other than the Company or any of the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract or otherwise.
(x) Neither the Company nor any of the Company Subsidiaries has been, within the past two (2) years or otherwise, part of a “plan (or series of related transactions)” within the meaning of Section 382(g355(e) of the Code of which the transactions contemplated in this Agreement are also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intending to qualify for Tax-free treatment under Section 355 of the Code.
(xi) Since January 1, except 2006, neither the Company nor any of the Company Subsidiaries has been required (or has applied) to include in income any material adjustment pursuant to Section 481 of the Code by reason of a voluntary change in accounting method initiated by the Company or any of the Company Subsidiaries, and the Internal Revenue Service (“IRS”) has not initiated or proposed any such material adjustment or change in accounting method (including any method for determining reserves for bad debts maintained by the Company or any of the Company Subsidiaries).
(xii) Neither the Company nor any of the Company Subsidiaries will be required to include any item of income or gain in, or exclude any item of deduction or loss from, taxable income as set forth a result of any (i) adjustment required by a change in method of accounting, (ii) closing agreement, (iii) intercompany transaction or (iv) installment sale or open transaction disposition made, or prepaid amount received, on or prior to the Closing Date.
(xiii) Neither the Company nor any of the Company Subsidiaries has any application pending with any Governmental Entity requesting permission for any changes in accounting method.
(xiv) No rulings, requests for rulings or closing agreements have been entered into with or issued by, or are pending with, any Governmental Entity with respect to the Company or any of the Company Subsidiaries.
(xv) Neither the Company nor any of the Company Subsidiaries has taken or agreed to take any action or is aware of any fact or circumstance that would prevent or impede, or could reasonably be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 3.11(f368(a) of the Disclosure ScheduleCode.
Appears in 2 contracts
Samples: Merger Agreement (Heritage Oaks Bancorp), Merger Agreement (Mission Community Bancorp)
Tax Matters. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) The Company and the Company Subsidiaries have timely filed, or caused to be timely filed, taking into account any extension of time within which to file, all Tax Returns required to be filed by or with respect to any of them (the “Company Returns”) and all such Company Returns are true, correct and complete in all material respects.
(ii) The Company and the Company Subsidiaries have timely paid in full to the appropriate Governmental Entity all Taxes required to be paid by any of them (whether or not shown on any Company Return), and the financial statements of the Company and the Company Subsidiaries reflect full and adequate reserves, in accordance with GAAP, for all Taxes accrued but not yet paid by the Company or any Company Subsidiary.
(iii) Each of the Company and each Subsidiary the Company Subsidiaries has in accordance with (A) timely paid, deducted, withheld and collected all Applicable Laws filed all Tax Returns which are amounts required to be filed, and has paid, deducted, withheld or made adequate provision for collected by any of them with respect to any payment owing to, or received from, their employees, creditors, independent contractors, customers and other third parties (and have timely paid over any amounts so withheld, deducted or collected to the payment of, all Taxes which have or may become due appropriate Governmental Entity) and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance (B) otherwise complied with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, Legal Requirements relating to the proper Authorities to the extent due withholding, collection and payable. Neither the Company nor any Subsidiary has executed any waiver to extendremittance of Taxes (including information reporting requirements).
(iv) There are no: (A) examinations, investigations, audits, or otherwise taken other proceedings pending or failed threatened in writing with respect to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities Taxes of the Company or any Company Subsidiary or any Company Returns; (B) extensions or waivers of the limitation period applicable to any Company Return or the period for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part assessment of any Taxes of the Financial Statements for all Taxes of any kindCompany or the Company Subsidiaries; (C) Legal Proceedings pending or threatened in writing (or, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to Company, being threatened) against the Company or any Company Subsidiary in respect of any Tax; (D) deficiencies for which an adequate reserve has Taxes that have been claimed, proposed or assessed by any Governmental Entity against the Company or any Company Subsidiary that have not been provided fully satisfied by payment; or (E) Liens in respect of or on such balance sheet. Each account of Taxes (other than Company Permitted Encumbrances) upon any of the property or assets of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the or any Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleSubsidiary.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(ev) Neither the Company nor any Subsidiary of the Company Subsidiaries (A) is or has been a party to member of any tax sharing agreement affiliated, combined, consolidated, unitary or arrangementsimilar group for purposes of filing Tax Returns or paying Taxes, except for any such group of which the Company is the common parent or Parent is or was the common parent or (B) has any liability for Taxes of any Person (other than the Company, any Company Subsidiary, Parent or any Parent Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar state, local or non-U.S. Legal Requirement) or as set forth in Section 3.11(e) of the Disclosure Schedulea transferee or successor, by Contract or otherwise.
(fvi) Neither the Company nor any Company Subsidiary has ever will be required to include an item of income (ior exclude an item of deduction) filed in any taxable period (or portion thereof) beginning after the Closing Date as a consent result of (A) a change in or incorrect method of accounting occurring prior to the Closing Date, (B) a “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or non-U.S. Legal Requirement) executed prior to the Closing Date, (C) an installment sale or open transaction disposition made prior to the Closing Date, (D) any prepaid amount received (or deferred revenue recognized) or paid, prior to the Closing Date (E) an election under Section 341(f108(i) of the Code concerning collapsible corporations (or any similar state, local, or non-U.S. Legal Requirement) or (iiF) undergone an "ownership change" Section 965 of the Code.
(vii) Neither the Company nor any Company Subsidiary is a party to or bound by, or has any obligation under, any Tax indemnity, sharing, allocation, or reimbursement agreement or arrangement, other than (A) customary tax provisions in ordinary course commercial agreements, the principal purpose of which is not related to Taxes or (B) any such agreement or arrangement to which Parent or any Parent Subsidiary is the counterparty.
(viii) Neither the Company nor any Company Subsidiary is bound with respect to the current or any future taxable period by any closing agreement (within the meaning of Section 382(g7121(a) of the Code or any similar or analogous state, local or non-U.S. Legal Requirement) or other ruling or written agreement with a Tax authority, in each case, with respect to material Taxes.
(ix) Within the last six (6) years, no claim has been made by any Tax authority in a jurisdiction where the Company or any Company Subsidiary has not filed Tax Returns of a particular type that the Company or any Company Subsidiary is or may be subject to material Tax by, or required to file Tax Returns with respect to material Taxes in, such jurisdiction.
(x) Within the last two (2) years, neither the Company nor any Company Subsidiary has been a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code (or any similar provision of state, local or non-U.S. Legal Requirement) in a distribution that was purported or intended to qualify for tax-free treatment under Section 355 of the Code (or any similar provision of state, local or non-U.S. Legal Requirement).
(xi) Neither the Company nor any Company Subsidiary has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar state, local or non-U.S. Legal Requirement).
(b) Neither the Company nor any Company Subsidiary is aware of any fact or circumstance, or has taken or agreed to take any action, that could reasonably be expected to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (EchoStar CORP), Merger Agreement (DISH Network CORP)
Tax Matters. (a) Each of the The Company and each Subsidiary of its subsidiaries has timely filed (or there have been filed on their behalf) in accordance correct form with appropriate taxing authorities all Applicable Laws filed all material Tax Returns which are (as defined herein) required to be filed, and has paid, filed by them on or made adequate provision for prior to the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to datedate hereof. The Such Tax Returns of the Company are true, accurate and each Subsidiary have been prepared complete in accordance with all Applicable Laws and generally accepted principles applicable material respects. With respect to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations all amounts in respect of any Tax liabilities of Taxes (as defined herein) imposed upon the Company or any Subsidiary subsidiary or for which the fiscal year prior Company or any such subsidiary of the Company is or could be liable, all applicable Tax laws have been complied with in all material respects, and all such amounts in respect of Taxes required to and including be paid by the most recent fiscal yearCompany or any of its subsidiaries to taxing authorities or others, have been paid. Adequate provision has been made The accrual on the most recent balance sheet forming part of the 2001 Unaudited Financial Statements for Taxes is adequate in all material respects to cover the Company's and its subsidiaries' obligations for Taxes as of any kind, including interest the date hereof.
(b) The Company and penalties its subsidiaries have complied in respect thereof, whether disputed or notall material respects with all applicable laws relating to the withholding of Taxes, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and subject to the knowledge of foregoing, have, within the Company there time and manner prescribed by law, withheld and paid over to the proper governmental authorities all amounts required to be withheld and paid over under all applicable laws.
(c) No federal, state, local or foreign audits or other administrative proceedings have formally commenced or are no transactions presently pending with regard to any Taxes due from or matters or any basis which might or could result in additional Taxes of any nature with respect to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheetof its subsidiaries. Each There are no outstanding requests, agreements, consents or waivers to extend the statutory period of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (limitations applicable to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account assessment of any Taxes except regular payments required in or deficiencies against the ordinary course Company or any of business with respect to current operations or property presently ownedits subsidiaries.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary of its subsidiaries is a party to any tax sharing material Tax sharing, Tax indemnity or other similar agreement or arrangementarrangement with any person or entity other than a Tax sharing, except as set forth in Section 3.11(e) Tax indemnity or other similar agreement to which the Company and/or one of its subsidiaries are the Disclosure Schedulesole parties.
(fe) Neither As used herein: (x) the Company nor term "TAX" or "TAXES" shall mean all taxes, charges, fees, duties, levies, penalties or other assessments imposed by any Subsidiary has ever federal, state, local or foreign governmental authority, including income, gross receipts, excise, property, sales, gain, use, license, custom duty, unemployment, capital stock, transfer, franchise, payroll, withholding, social security, minimum estimated, profit, gift, severance, value added, disability, premium, recapture, credit, occupation, service, leasing, employment, stamp and other taxes, and shall include interest, penalties or additions attributable thereto or attributable to any failure to comply with any requirement regarding Tax Returns; and (iy) filed the term "TAX RETURN" shall mean any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any such document prepared on a consent under Section 341(f) of the Code concerning collapsible corporations consolidated, combined or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Codeunitary basis and also including any schedule or attachment thereto, except as set forth in Section 3.11(f) of the Disclosure Scheduleand including any amendment thereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Wynnchurch Capital Partners Lp), Securities Purchase Agreement (Alternative Resources Corp)
Tax Matters. Except as set forth in Schedule 3(aa) to the Disclosure Schedules or except as would not, individually or in the aggregate, have a Material Adverse Effect:
(ai) Each of the Company and each Subsidiary its subsidiaries has in accordance duly and timely filed or caused to be duly and timely filed (taking into account any applicable extension of time within which to file) with the appropriate taxing authorities all Applicable Laws filed all material tax returns, statements, forms and reports (including elections, declarations, disclosures, schedules, estimates and information Tax Returns which Returns) for taxes (“Tax Returns”) that are required to be filed, and has paidfiled by, or made adequate provision for the payment ofwith respect to, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns each of the Company and each Subsidiary its subsidiaries, except in respect of taxes (A) which are being contested in good faith and by appropriate proceedings, (B) for which adequate reserves have been prepared established in accordance with GAAP or (C) with respect to the Debtors only, to the extent the non-payment thereof is permitted by the Bankruptcy Code. Such Tax Returns accurately reflect all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which material liability for taxes of the Company and its subsidiaries for the tax periods covered thereby and such tax liability has been paid in full, except, in each Subsidiary case, as provided in the preceding sentence and subject to any tax claims filed in the CHC Cases with respect to one or more of the Debtors.
(ii) There are no Liens or encumbrances for taxes upon the assets of any of the Company or any of its subsidiaries except for statutory Liens for current taxes not yet overdue or Liens for taxes that are being contested in good faith and by appropriate proceedings and in respect of which adequate reserves have been established in accordance with GAAP.
(iii) Neither the Company nor any of its subsidiaries has received any written notices from any taxing authority relating to any issue that could materially affect the tax liability of the Company or any of its subsidiaries, other than any tax claims (A) filed in the CHC Cases with respect to one or more of the Debtors or (B) in respect of which adequate reserves have been established in accordance with GAAP. No unresolved material deficiencies for any Tax Returns have been proposed or assessed against or with respect to any of the Company or any of its subsidiaries (and there is no outstanding audit, assessment, dispute or claim concerning any material Tax liability of any of the Company or any of its subsidiaries pending or raised) in each case by any taxing authority in writing to any of the Company or any of its subsidiaries other than any tax claims (A) filed in the CHC Cases with respect to one or more of the Debtors or (B) in respect of which adequate reserves have been established in accordance with GAAP.
(iv) All material taxes that the Company and its subsidiaries (taken as a whole) were (or was) required by law to withhold and or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly withheld and collected or collected, and have been timely paid over, in a timely manner, to the proper Authorities authorities to the extent due and payable. Neither payable and not prohibited by the Company nor any Subsidiary has executed any waiver to extendBankruptcy Code.
(v) There are no tax sharing, allocation, indemnification or otherwise taken or failed to take any action that would have the similar agreements in effect of extending, the applicable statute of limitations in respect of any Tax liabilities of as between the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters its subsidiaries or any basis predecessor or any other party (including any predecessors thereof) under which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as its subsidiaries is a Subchapter C corporation under the Codeparty to or otherwise bound by, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiariessuch agreements (i) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required that are entered in the ordinary course of business with respect or (ii) that are not expected to current operations or property presently ownedresult in a liability for taxes that is material to the Company and its subsidiaries taken as a whole.
(dvi) The information shown on No subsidiary of the federal income Company that is required to file a U.S. Tax Returns Return has engaged, directly or through any subsidiary, in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) for tax years since 2012.
(vii) Neither Sxxxxxxxx Airways Panama Operating SA, Sxxxxxxxx Airways Panama SA, Heli-One Australia Pty Limited, Heli-One American Leasing Inc., nor OSCO & Chi Arabia Ltd holds, relative to the aggregate of the Company and its Subsidiaries subsidiaries, any material assets or produces any material income and the capital stock of none of such companies has any material value as of the date hereof or will on the Plan Effective Date.
(trueviii) The Company is not engaged in a trade or business in any jurisdiction other than the Cayman Islands.
(ix) The Company is not subject and has never been subject to tax in any jurisdiction other than the Cayman Islands.
(x) Subject to the receipt from the holder of any applicable documentation reasonably requested, correct the exchange of the Secured Notes (as defined in the Plan Support Agreement) and complete copies of which have been furnished Unsecured Notes (as defined in the Plan Support Agreement) pursuant to the Restructuring and distributions by the Company with respect to VIALOG) is truethe Notes will not be subject to withholding tax (other than withholding tax imposed solely as a result of a present or former connection between the recipient of such distribution and the jurisdiction imposing such tax). Notwithstanding the foregoing, correct the representations and complete and fairly and accurately reflects the information purported warranties shall not be deemed to be shown. Federal and state income Tax Returns address any loss or credit carryforwards of the Company and or any of its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party subsidiaries to any tax sharing agreement taxable period (or arrangement, except as set forth in Section 3.11(eportion thereof) of that begins after the Disclosure Scheduledate hereof.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Plan Support Agreement (CHC Group Ltd.), Backstop Agreement (CHC Group Ltd.)
Tax Matters. Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Corporations, all Tax Returns required to be filed by or on behalf of any of the Acquired Corporations with any Governmental Body with respect to any taxable period ending on or before the Closing Date (the "Acquired Corporation Returns")
(a) Each have been or will be filed on or before the applicable due date (including any extensions of such due date), and (b) have been, or will be when filed, prepared in all material respects in compliance with all applicable Legal Requirements. All amounts shown on the Acquired Corporation Returns to be due on or before the Closing Date have been or will be paid on or before the Closing Date. The Company Financial Statements fully accrue all actual and each Subsidiary has contingent liabilities for Taxes with respect to all periods through the dates thereof in accordance with all Applicable Laws filed all generally accepted accounting principles. There are no unsatisfied liabilities for material Taxes (including liabilities for interest, additions to tax and penalties thereon and related expenses) with respect to any notice of deficiency or similar document received by any Acquired Corporation with respect to any material Tax Returns (other than liabilities for Taxes asserted under any such notice of deficiency or similar document which are required being contested in good faith by the Acquired Corporations and with respect to be filed, and has paid, or made which adequate provision reserves for the payment of, all have been established). There are no liens for material Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns upon any of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All assets of any of the Acquired Corporations except liens for current Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent not yet due and payable. Neither No extension or waiver of the Company nor limitation period applicable to any Subsidiary of the Acquired Corporation Returns has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of been granted (by the Company or any Subsidiary for the fiscal year prior to other Person), and including the most recent fiscal year. Adequate provision no such extension or waiver has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of requested from any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (Acquired Corporation other than exclusively with an extension resulting from the Company and filing of a Tax Return after its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business business. No claim or Legal Proceeding is pending or, to the Company's knowledge, has been threatened against or with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns any Acquired Corporation in respect of any material Tax. None of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished Acquired Corporations has entered into or become bound by the Company any agreement or consent pursuant to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d341(f) of the Disclosure SchedulesCode. None of the Acquired Corporations has been, and neither none of the Acquired Corporations will be, required to include any adjustment in taxable income for any tax period (or portion thereof) pursuant to Section 481 or 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions or events occurring, or accounting methods employed, prior to the Closing. There is no agreement, plan, arrangement or other Contract covering any employee or independent contractor or former employee or independent contractor of any of the Acquired Corporations that, considered individually or considered collectively with any other such Contracts, will, or could reasonably be expected to, give rise directly or indirectly to the payment of any amount that would not be deductible pursuant to Section 280G or Section 162m of the Code. There is no agreement, plan, arrangement or Contract whereby the Company nor would be obligated to pay any Subsidiary has been notified regarding excise taxes due from any pending audit, except as shown in Section 3.11(d) employee of the Disclosure Schedule.
(e) Neither Company. None of the Company nor any Subsidiary Acquired Corporations is a party to any Contract to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code. None of the Acquired Corporations is, or has ever been, a party to or bound by any tax indemnity agreement, tax sharing agreement, tax allocation agreement or arrangementsimilar Contract, except as set forth in including any obligation arising by reason of Treasury Regulations Section 3.11(e) 1.1502-6, and none of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary Acquired Corporations has ever (i) filed a consent under Section 341(f) or, by reason of the Code concerning collapsible corporations consummation of the transactions contemplated under this Agreement, will have any liability or (ii) undergone an obligation under any tax indemnity agreement, tax sharing agreement, tax allocation agreement or similar Contract. None of the Acquired Corporations have made any distribution of stock of any "ownership changecontrolled corporation," within the meaning of as that term is defined by Section 382(g355(a)(1) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Applied Micro Circuits Corp), Agreement and Plan of Merger and Reorganization (Applied Micro Circuits Corp)
Tax Matters. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect:
(a) Each The Company and its Subsidiaries (i) have duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to have been filed by or with respect to the Company or any of its Subsidiaries, and all such Tax Returns are true, correct and complete, (ii) have duly and timely paid all Taxes due and payable (whether or not shown on such Tax Returns), (iii) have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, and (iv) have not received written notice of any deficiencies for any Tax from any taxing authority against the Company or any of its Subsidiaries, except, in each case, with respect to matters contested in good faith or for which adequate reserves, in accordance with GAAP, are reflected in the Company SEC Documents. The Company and its Subsidiaries have adequate reserves, in accordance with GAAP, on the financial statements included in the Company SEC Documents for Taxes payable by the Company and its Subsidiaries for all taxable periods and portions thereof through the date of the most recent quarterly or annual report included in the Company SEC Documents. Since the date of the most recent quarterly or annual report included in the Company SEC Documents, neither the Company nor any of its Subsidiaries have incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice.
(b) Neither the Company nor any of its Subsidiaries is the subject of any currently ongoing tax audit or other proceeding with respect to Taxes nor has any Tax audit or other proceeding with respect to Taxes been proposed against any of them in writing. As of the date of this Agreement, there are no pending requests for waivers of the time to assess any Tax. There are no currently effective waivers of any statute of limitations in respect of Taxes or extensions of time with respect to a Tax assessment or deficiency of the Company and each Subsidiary has or any of its Subsidiaries. There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries, other than any Lien for Taxes not yet delinquent, being contested in good faith or for which adequate accruals or reserves have been established, in accordance with all Applicable Laws GAAP, in the Company SEC Documents. No claim has been made in writing in the past three years by a taxing authority of a jurisdiction where the Company or one of its Subsidiaries has not filed all Tax Returns which are required to be filed, and has paid, claiming that the Company or made adequate provision for the payment of, all Taxes which have such Subsidiary is or may become due and payable pursuant be subject to said Returns and all taxation by that jurisdiction.
(c) Neither the Company nor any of its Subsidiaries is obligated by any written contract or agreement to indemnify any other governmental charges and assessments received to date. The Tax Returns of person (other than the Company and each Subsidiary have been prepared its Subsidiaries) with respect to Taxes (excluding customary Tax indemnification provisions in accordance with all Applicable Laws and generally accepted principles applicable commercial Contracts not primarily relating to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableTaxes). Neither the Company nor any Subsidiary has executed of its Subsidiaries is a party to or bound by any waiver to extendwritten Tax allocation, indemnification or otherwise taken sharing agreement (other than an agreement solely between or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of among the Company or any Subsidiary for the fiscal year prior and/or its Subsidiaries and excluding customary Tax indemnification provisions in commercial Contracts not primarily relating to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure ScheduleTaxes). Neither the Company nor any Subsidiary has ever been a member of its Subsidiaries is liable under Treasury Regulation Section 1.1502-6 (or any similar provision of the Tax Laws of any consolidated group (state, local or foreign jurisdiction) or as a transferee or successor for any Tax of any person other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither Neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown of its Subsidiaries was a “distributing corporation” or a “controlled corporation” in a transaction intended to qualify under Section 3.11(d) 355 of the Disclosure ScheduleCode within the past two (2) years.
(e) Neither the Company nor any Subsidiary is a party to of its Subsidiaries has participated in any tax sharing agreement or arrangement, except as set forth in “listed transaction” within the meaning of Treasury Regulation Section 3.11(e) of the Disclosure Schedule1.6011-4(b)(2).
(f) Neither Except for Susser Petroleum Property Company LLC, each Subsidiary of Susser MLP is properly disregarded as an entity separate from Susser MLP for U.S. federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3(b).
(g) Susser MLP has, at all times since its formation, been classified for U.S. federal income tax purposes as a partnership or disregarded entity, as the Company nor any Subsidiary has ever case may be, and not as a corporation.
(h) As used in this Agreement, (i) filed a consent under Section 341(f“Taxes” means any and all domestic or foreign, federal, state, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, occupation, property, transfer, sales, use, capital stock, severance, alternative minimum, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of excise, withholding, ad valorem or value added or other taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the Code concerning collapsible corporations same or a similar nature to any of the foregoing, and (ii) undergone an "ownership change" within “Tax Return” means any return, report or similar filing (including the meaning attached schedules) with respect to Taxes, including any information return, claim for refund, amended return or declaration of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Scheduleestimated Taxes.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Energy Transfer Partners, L.P.)
Tax Matters. (a) Each For purposes of this Section 3.26, the terms "Company" and "Subsidiaries" shall include any other company, partnership, or interest grouping which has been merged, absorbed, liquidated, or contributed by way of a universal transfer of assets and liabilities to the Company or the Company Subsidiaries.
(b) The Company and each of the Company Subsidiaries comply and each Subsidiary has have complied, in accordance all material respects for all periods open for Tax audit or claims under the applicable statutes of limitation (as the same may be extended under applicable law), with the Tax Regulations and, more particularly, and without limitation, have filed on a timely basis with the appropriate Governmental Entity all Applicable Laws filed all material Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant filed by them under applicable Requirements of Law. Where a Tax Return was required to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities be filed on behalf of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions Subsidiaries with any Governmental Entity by another taxpayer by reason of a tax consolidation regime or matters otherwise, such Tax Return has been duly and timely filed. All such Tax Returns filed by or any basis which might or could result in additional Taxes on behalf of any nature to the Company or any Subsidiary for which an adequate reserve has not of Company Subsidiaries have been provided on such balance sheet. Each of the Company true, sincere and each Subsidiary has at complete in all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payablerespects.
(c) From All material Taxes required to be paid in respect of any material Tax by or on behalf of the end of its most recent fiscal year Company and Company Subsidiaries that were due and payable on or prior to the date hereof neither Closing Date, whether or not shown on any Tax Return, have been timely and duly paid to the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required appropriate Governmental Entity and in the ordinary course manner prescribed by applicable Requirements of business with respect Law. The Company and EDS Corp. have made sufficient provisions in the respective balance sheets as of December 31, 2005 for the payment of all Taxes which may become due in relation to current operations or property presently ownedperiods prior to December 31, 2005.
(d) The information shown on There are no pending or, to the federal Guarantors' Knowledge, threatened material Tax-related audits, inspections, inquiries or litigation proceedings or claims against, or related to the taxable income Tax Returns of, the Company or any of Company Subsidiaries, no material deficiency for any Taxes has been proposed, asserted or assessed which has not been finally resolved, and none of the Company and its Subsidiaries or Company Subsidiaries, has received any material request for information or notice from any Tax authority. Section 3.26(d) of the Guarantors Disclosure Schedule sets forth (truei) a list of all Tax audits, correct and complete copies of which have been furnished examinations or investigations completed by tax administration with respect to the Company and Company Subsidiaries with respect to VIALOGTaxable periods ending since January 1, 2003, (ii) is truethe amounts claimed against the Company or any Company Subsidiary in connection with such audits, correct examinations, or investigations and complete and fairly and accurately reflects (iii) the information purported to be shown. Federal and state income Tax Returns amounts paid by or on behalf of the Company or any of Company Subsidiaries, and its Subsidiaries have been audited by the IRS or applicable state Authority for amount of any provisions made in the taxable periods set forth in Section 3.11(d) consolidated balance sheet of the Disclosure SchedulesCompany or Company Subsidiaries as of December 31, 2005 as a result of such audits, examinations or investigations. Such provisions as made in the consolidated balance sheet as of December 31, 2005 are sufficient (as determined in accordance with French GAAP or US GAAP when applicable) to cover all reasonable risks and neither the Company nor any Subsidiary has been notified regarding any costs associated with all pending auditTax-related audits, except as shown in Section 3.11(d) of the Disclosure Scheduleinspections, inquiries or litigation proceedings or claims.
(e) Neither the Company nor any Subsidiary of Company Subsidiaries (i) has received any written Tax ruling or entered into any written and legally binding agreement or is currently under negotiations to enter into any such agreements with any Tax authority that would be adversely affected upon consummation of the Transactions or that would adversely affect the combination of the Company and Company Subsidiaries with the Purchaser, (ii) has made any commitment or entered into any agreement or taken any action resulting in Tax deferral or in a party Tax deferred liability, (iii) benefits from a specific Tax regime subordinated to the respect of any undertaking whatsoever, or has consented to, or may be found liable as a result of, any undertaking in respect of Taxes made in the context of acquisitions, divestitures, mergers, restructuring or similar transactions, (iv) has waived any statute of limitations in respect of Taxes or agreed to any tax sharing agreement extension of time with respect to a material Tax assessment or arrangement, except as set forth in Section 3.11(e) of the Disclosure Scheduledeficiency.
(f) Neither To the Knowledge of the Guarantors, there are no Encumbrances on any of the assets of the Company or of any of Company Subsidiaries in connection with any failure (or alleged failure) to pay any Tax.
(g) To the Knowledge of the Guarantors, there are no pending claims made by an authority in a jurisdiction where neither the Company nor any Subsidiary has ever of the Company Subsidiaries files Tax Returns and, to the Knowledge of the Guarantors, neither the Company nor any of Company Subsidiaries have a permanent establishment, including without limitation by virtue of dependent agents, in a jurisdiction other than the jurisdiction of their respective incorporation or effective management.
(h) The Guarantors have provided, and will provide, to the Purchaser such Tax information and assistance (including access to information systems: software, hardware and documentation) with respect to the operations, ownership, assets, or activities of the Company or any of Company Subsidiaries to the extent that such information and assistance was, or will be, necessary for (i) filed a consent under Section 341(f) the preparation of any Tax Return of the Code concerning collapsible corporations Company or any of Company Subsidiaries, relating to any period ending on or before the Closing Date; or (ii) undergone an the Tax audit of any period ending on or before the Closing Date.
(i) To the Knowledge of the Guarantors, neither the Company nor any of the Company Subsidiaries has even been a member of or a party to any partnerships, joint ventures or interest groupings, or Tax groupings (intégration fiscale) or Tax allocation agreements under which the Company or any of the Company Subsidiaries may be responsible for any Tax obligations of any other Person, except in each case, as would not be reasonably likely to have a material adverse effect on the business of the Company and its Subsidiaries taken as a whole and as currently conducted.
(j) All Tax credits and Tax losses reported in the Tax Returns of the Company or any of Company Subsidiaries are valid and will not be affected by the Transactions.
(k) The Company is not, and has not at any time during the last twelve (12) months, a "ownership changeControlled Foreign Corporation" within (as defined in Section 957 of the meaning Internal Revenue Code of 1986, as amended (the "Code") or a "Passive Foreign Investment Company" (as defined in Section 382(g) 1297 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule).
Appears in 2 contracts
Samples: Share Purchase and Contribution Agreement, Share Purchase and Contribution Agreement (Paradigm Ltd.)
Tax Matters. (a) Each The Company and each of its Subsidiaries (i) have timely filed with the appropriate Governmental Authority (taking into account any valid extensions of time in which to file) all material U.S. federal, state, local and non-U.S. returns, estimates, claims for refund, information statements and reports or other similar documents required to be filed with respect to Taxes with any Governmental Authority (including amendments, schedules or attachments thereto) (“Tax Returns”) required to be filed by any of the Company and each Subsidiary has its Subsidiaries, and such Tax Returns are true, correct and complete in all material respects and have been prepared in accordance with all Applicable Laws filed all Tax Returns which are required to be filedapplicable Law, and has (ii) have paid, or made adequate provision have reserved in accordance with GAAP on the most recent financial statements contained in the Company SEC Reports for the payment of, all material Taxes which have required to be paid by or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns on behalf of each of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overits Subsidiaries, in whether or not reflected on a timely manner, to the proper Authorities to the extent due and payableTax Return. Neither the Company nor any Subsidiary of its Subsidiaries has incurred any material liabilities for Taxes since the Company Balance Sheet Date other than in the ordinary course of business or in connection with the transactions specifically contemplated by this Agreement. Neither the Company nor any of its Subsidiaries has executed any waiver to extend, or otherwise taken or failed to take of any action that would have the effect of extending, the applicable statute of limitations extending the period for the assessment or collection of any material Tax which such waiver or extension is still in respect effect.
(b) The Company and its Subsidiaries have timely withheld or collected all material Taxes (including social security, Federal Insurance Contribution Act, and Federal Unemployment Tax Act charges and other similar charges) that the Company or its Subsidiaries have been required to withhold or collect and, to the extent required when due, have timely paid such Taxes to the proper Governmental Authority.
(c) No audit of any Tax liabilities Return, or Legal Proceeding with respect to any material Taxes, of the Company or any of its Subsidiaries by any Governmental Authority is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any such pending Legal Proceeding or audit. All material Tax deficiencies asserted or Tax assessments made against the Company and its Subsidiaries as a result of any examinations by any Governmental Authority have been fully paid, unless such deficiencies and assessments are being contested in good faith by appropriate proceedings and adequate reserves for which have been established on the Company Balance Sheet in accordance with GAAP. Subject to exceptions as would not be material, neither the Company nor its Subsidiaries have received in the last three (3) years a written claim from a Governmental Authority in a jurisdiction where the Company or any Subsidiary of the Company does not file Tax Returns that the Company or such Subsidiary of the Company is or may be subject to taxation by, or required to file Tax Returns in, such jurisdiction.
(d) There are no material Tax liens on the assets of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure SchedulePermitted Liens.
(e) Neither the Company nor any Subsidiary is of its Subsidiaries will be required to include a party material item of income in, or exclude a material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, in each case, as a result of a change in method of accounting under Section 481 of the Code (or any similar provision of state, local or non-U.S. Law) made prior to any tax sharing agreement or arrangementthe Closing, except a “closing agreement” as set forth described in Section 3.11(e7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing without the consent of Parent, an installment sale or open transaction effected prior to the Closing, a prepaid amount received prior to the Closing Date, any “gain recognition agreement” (as defined in the Treasury Regulations promulgated under Section 367 of the Code) entered into prior to the Closing, an election filed under Section 965(h) of the Disclosure ScheduleCode made prior to the Closing or an election pursuant to Section 108(i) of the Code (or any similar provision of state, local or non-U.S. Law) made prior to the Closing.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone Company has participated in an "ownership change" international boycott within the meaning of Section 382(g999 of the Code.
(g) Neither the Company nor any Subsidiary of the Company has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code at any time in the last two years.
(h) Neither the Company nor any Subsidiary of the Company has engaged in a “listed transaction,” as set forth in Treas. Reg. § 1.6011-4(b)(2) (or any similar provision of U.S. state or local Law).
(i) None of the Company nor any Subsidiary of the Company (i) is a member of an affiliated group (within the meaning of Section 1504 (a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which is the Company), except as set forth (ii) is a party to, or bound by, any Tax sharing, indemnification, allocation or other similar agreement or arrangement with respect to Taxes (other than any such agreement with service providers, customers, vendors, creditors or lessors entered into in Section 3.11(f) the ordinary course of business, the principal purpose of which is not to address Tax matters), nor does the Company or any Subsidiary of the Disclosure ScheduleCompany owe any material amount under any such agreement or (iii) has any material liability for the Taxes of any other Person under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor or otherwise by operation of law.
(j) Each of the Company and its Subsidiaries is in compliance in all material respects with the terms and conditions of any presently applicable Tax exemption, Tax holiday or other Tax reduction agreement or order granted specifically to the Company or its Subsidiaries, as applicable.
(k) None of the Company or any of its Subsidiaries has a material liability pursuant to a European Union “state aid” claim in progress based on Taxes, nor has the Company or any of its Subsidiaries been notified in writing that any such claim is pending which claim could be reasonably expected to give rise to a material liability of the Company or its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Xcerra Corp), Merger Agreement (Cohu Inc)
Tax Matters. (a) Each of the Company and each Subsidiary its Subsidiaries has in accordance with timely filed, or has caused to be timely filed on its behalf (taking into account any extension of time within which to file), all Applicable Laws filed all material Tax Returns which are required to be filedfiled by it or on behalf of it, in all applicable jurisdictions, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The such filed Tax Returns of the Company are true, correct and each Subsidiary have been prepared complete in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedmaterial respects. All Taxes which the Company and each Subsidiary are required by law shown to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent be due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendon such Tax Returns, or otherwise taken or failed required to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of be paid by the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedulehave been fully and timely paid.
(b) Each of The most recent financial statements contained in the Company and each Subsidiary has paid SEC Documents reflect an adequate reserve for all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of payable by the Company and its Subsidiaries (truefor all taxable periods and portion thereof through the date of such financial statements. No deficiency with respect to Taxes has been proposed, correct asserted or assessed against the Company or any of its Subsidiaries, except for deficiencies which are being diligently contested in good faith by appropriate proceedings and complete copies of for which adequate reserves have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth established in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleaccordance with GAAP.
(ec) Neither the Company nor any Subsidiary is of its Subsidiaries has constituted either a party to any tax sharing agreement “distributing corporation” or arrangement, except as set forth in a “controlled corporation” (within the meaning of Section 3.11(e355(a)(1)(A) of the Disclosure ScheduleCode) in a distribution of stock intended to qualify for tax-free treatment under Section 355 or Section 361 of the Code.
(d) No audit or other administrative or court proceedings are pending with any Governmental Entity with respect to Taxes of the Company or any of its Subsidiaries in any material amount and no written notice thereof has been received.
(e) The Company and its Subsidiaries have complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes and have duly and timely withheld and paid over to the appropriate Governmental Entity all amounts required to be so withheld and paid under all applicable Laws, including any Taxes in connection with any amounts paid or owing to any present or former employee, officer, director, independent contractor, creditor, shareholder or any other third party.
(f) Neither the Company nor any Subsidiary of its Subsidiaries is a party to any contract, agreement, plan or other arrangement that, individually or collectively, could give rise to the payment of any amount which would not be deductible by reason of Section 162(m) or Section 280G of the Code or would be subject to withholding under Section 4999 of the Code.
(g) The Company has ever made available to Parent correct and complete copies of (i) filed a consent under Section 341(f) all income and franchise Tax Returns of the Code concerning collapsible corporations or Company and its Subsidiaries for the preceding three taxable years, (ii) undergone an "ownership change" any audit report issued by any Governmental Entity within the last three years (or otherwise with respect to any audit or proceeding in progress) relating to income and franchise Taxes of the Company or any of its Subsidiaries and (iii) all material, private letter rulings, closing agreements, settlement agreements, and similar documents sent to or received by the Company or any of its Subsidiaries from any Governmental Entity relating to Taxes.
(h) The Company is not, and has not been at any time within the five years prior to the closing, a “United States real property holding corporation” within the meaning of Section 382(g) 897 of the Code, except as set forth in Section 3.11(f.
(i) There are no Liens for Taxes on any of the Disclosure Scheduleassets of the Company or any of its Subsidiaries, other than Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established on the Company’s or the relevant Subsidiary’s financial statements in accordance with GAAP.
(j) None of the Company or any of its Subsidiaries has engaged in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) For purposes of this Agreement: (x) “Taxes” shall mean (A) all federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, custom duties, fees, assessments and charges of any kind whatsoever, (B) all interest, penalties, fines, additions to tax or additional amounts imposed by any Governmental Entity in connection with any item described in clause (A) and (C) any liability in respect of any items described in clauses (A) and/or (B) payable by reason of contract, assumption, transferee liability, operation of Law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof of any analogous or similar provision under Law) or as an indemnitor, guarantor, surety or in a similar capacity under any contract, arrangement, agreement, understanding or commitment (whether oral or written) or otherwise and (y) “Tax Returns” shall mean any return, report, claim for refund, estimate, information return or statement or other similar document relating to or required to be filed with any Governmental Entity with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Appears in 2 contracts
Samples: Merger Agreement (Waste Industries Usa Inc), Merger Agreement (Goldman Sachs Group Inc/)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except Except as set forth in Section 3.11(a) of the Disclosure Schedule, (i) all Tax Returns required to be filed by or on behalf of any Material Group Company and, to the Knowledge of the Seller Parties, any Recently Acquired Group Company have been accurately prepared in all material respects and filed in a timely manner (within any applicable extension periods) and are true, correct and complete in all material respects, (ii) all Taxes due and payable, whether or not shown on any Tax Returns have been timely paid in full or will be timely paid in full by the due date thereof, and the Group Companies have adequately provided for all Taxes for which they are required to provide, (iii) none of the Group Companies had liability for Taxes in excess of the accruals for Taxes reflected on the Financial Statements and will not have liability for Taxes in excess of such accruals as such accruals for Taxes reflected on the Closing Date Balance Sheet, (iv) no material claims are being asserted in writing with respect to any Taxes of any of the Group Companies and (v) no extension of time with respect to the filing of any Tax Return by any Group Company is in force.
(b) Each No power of attorney (or similar documentation) granted by or with respect to any Group Company relating to Taxes is currently in force. Except as would not reasonably be expected to have a Material Adverse Effect, each of the Company Group Companies is and each Subsidiary has paid been in compliance with all applicable Laws relating to the payment, withholding and exemptions of Taxes which have become due pursuant to its Returns and has duly and timely withheld from employee salaries, wages and other compensation and has paid all installments (over to the extent appropriate taxing authorities all amounts required to avoid material underpayment penalties) of estimated Taxes due be so withheld and payablepaid over for all periods under all applicable Laws.
(c) From The Company has made available to Buyer complete copies of (i) all material income Tax Returns of the end of its most recent fiscal year Group Companies relating to the date hereof neither taxable periods ending after January 1, 2003, (ii) the Company nor any Subsidiary has made any payment on account portions of any Taxes except regular payments required in audit report issued within the ordinary course last three (3) years relating to any adjustments of business with respect any Group Company and (iii) all applications by the Material Group Companies and, to current operations or property presently ownedthe Knowledge of the Seller Parties, the Recently Acquired Group Companies to qualify for Tax exemptions.
(d) The information shown on No submissions made to any Governmental Authority in connection with obtaining its Tax exemptions contained any material misstatement or omission that would have affected the federal income granting of its Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleexemptions.
(e) Neither No claim has been made by any taxing authority in any jurisdiction where each Group Company does not file Returns that it is or may be subject to Tax by that jurisdiction. No extensions or waivers of statutes of limitations with respect to any Tax have been given by or requested from any Group Company. There are no audits or investigations by any taxing authority of any of the Group Companies in progress nor, to the Knowledge of the Seller Parties, is there any pending or threatened audit or investigation by any Governmental Authority.
(f) All deficiencies asserted or assessments made against any Group Company nor as a result of any Subsidiary examinations by any taxing authority have been fully paid and to the Knowledge of the Seller Parties, no rationale underlying a claim for Taxes has been asserted previously by any taxing authority that reasonably could be expected to be asserted in any other period.
(g) No Material Group Company or Recently Acquired Group Company is a party to any tax indemnity, tax allocation or tax sharing or similar agreement or arrangementarrangement (whether or not written) pursuant to which it will have any obligation to make any payments after the Closing or has any liability for the Taxes of any Person (other than the Company or any other Group Company) under any Law as a transferee or successor, except as set forth in Section 3.11(e) of the Disclosure Scheduleby contract, or otherwise.
(fh) Neither Other than Encumbrances for Taxes not yet payable or being contested in good faith and for which adequate accruals and reserves have been established on the Company nor Financial Statements, the effectiveness of which does not require notification or registration by any Subsidiary has ever third party, there are no Encumbrances for Taxes upon the assets of any Group Company.
(i) filed a consent under Section 341(f) Each Material Group Company and, to the Knowledge of the Code concerning collapsible corporations Seller Parties, each Recently Acquired Group Company has collected all material sales and use Taxes required to be collected, and has remitted, or (ii) undergone an "ownership change" within will remit on a timely basis, such amounts to the meaning of Section 382(g) of appropriate Governmental Authorities, or has been furnished properly completed exemption certificates and has maintained all such records and supporting documents in the Code, except as set forth in Section 3.11(f) of the Disclosure Schedulemanner required by all applicable sales and use Tax statutes and regulations.
Appears in 2 contracts
Samples: Share Purchase Agreement (Focus Media Holding LTD), Share Purchase Agreement (Focus Media Holding LTD)
Tax Matters. (a) Each of the The Company and each Company Subsidiary has in accordance with all Applicable Laws have timely filed all Tax Returns which are required to be filed, . All such Tax Returns are accurate and has paid, or made adequate provision for the payment of, complete in all material respects. The Company and each Company Subsidiary have paid all Taxes which have or may become shown as due and payable pursuant to said Returns and all other governmental charges and assessments received to dateon such Tax Returns. The Tax Returns of financial statements contained in the most recent Company SEC Report reflect an adequate reserve for all Taxes payable or accrued by the Company and each Subsidiary have been prepared in accordance with the Company Subsidiaries for all Applicable Laws taxable periods and generally accepted principles applicable to taxation consistently applied. All Taxes which portions thereof through the date of such financial statements.
(b) The Company and each Company Subsidiary are have complied with all applicable Laws relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, and 3402 of the Code or similar provisions under any foreign Laws) and have duly and timely withheld and have paid over to the appropriate Governmental Authorities all amounts required by law to withhold be so withheld and collect paid over on or prior to the due date thereof under all applicable Laws.
(c) No deficiencies for Taxes have been duly withheld and collected and have been paid over, asserted or assessed in a timely mannerwriting or, to the proper Authorities Knowledge of Company or a Company Subsidiary, proposed against the Company or a Company Subsidiary that individually or in the aggregate would be material and that have not been paid or otherwise resolved. No waivers of the time in which to assess Taxes have been executed by the extent due Company or any Company Subsidiary and payableno such waivers are pending. There are no Liens for Taxes on the assets of Company or the Company Subsidiaries except for statutory Liens for Taxes not yet due. Neither the Company nor any Company Subsidiary is subject to any existing examination by any Governmental Entity and no such examination has executed any waiver been scheduled.
(d) The Company or its predecessor (i) has been subject to extendtaxation as a real estate investment trust (a “REIT”) within the meaning of Section 856 of the Code commencing with the taxable year ending December 31, or otherwise 1986, and has satisfied all requirements to qualify as a REIT for each of its taxable years, (ii) has operated, and will continue to operate, in such a manner as to qualify as a REIT until the Acceptance Time and (iii) has not taken or failed omitted to take any action that which would have reasonably be expected to (A) result in any material amount of rents paid by the effect of extending, the applicable statute of limitations in respect of any Tax liabilities tenants of the Properties to be excluded from the definition of “rents from real property” under Section 856(d)(2)(C) of the Code, or (B) otherwise result in a challenge to its status as a REIT, and no such challenge is pending or, to the Company’s Knowledge, threatened. Each Company Subsidiary which is a partnership, joint venture or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision limited liability company (i) has been made on the most recent balance sheet forming part of the Financial Statements since its formation and continues to be treated for all Taxes of any kind, including interest federal income tax purposes as either a partnership or disregarded as a separate entity and penalties in respect thereof, whether disputed not as a corporation or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been association taxable as a Subchapter C corporation, as the case may be, and (ii) has not since its formation owned any assets (including, without limitation, securities) that would cause the Company to violate Section 856(c)(4) of the Code. Each Company Subsidiary which is a corporation or treated as an association taxable as a corporation has been since the date of its formation a qualified REIT subsidiary under Section 856(i) of the Code, except as otherwise set forth in a “taxable REIT subsidiary” within the meaning of Section 3.11(a) of the Disclosure Schedule856(l)(1), or a REIT. Neither the Company nor any Company Subsidiary has ever been holds any asset (x) the disposition of which would be subject to rules similar to Section 1374 of the Code as a member result of any consolidated group an election under Sections 1.337(d)-5 or 1.337(d)-6 of the Treasury Regulations or (other than exclusively with the Company and its Subsidiariesy) for Tax purposes, except as set forth in which is subject to a consent filed pursuant to Section 3.11(a341(f) of the Disclosure ScheduleCode and the regulations thereunder. All former Company Subsidiaries, if such entities had remained Company Subsidiaries, would comply with this Section 3.10(d).
(be) Each Since December 31, 2004, the Company has incurred no liability for any Taxes under Sections 857(b), 860(c) or 4981 of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to Code or Sections 1.337(d)-5 or 1.337(d)-6 of the extent required to avoid Treasury Regulations, including any material underpayment penaltiesTax arising from a prohibited transaction described in Section 857(b)(6) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither Code. Neither the Company nor any Company Subsidiary has made incurred any payment on account of any liability for Taxes except regular payments required other than (i) in the ordinary course of business business, or (ii) transfer or similar Taxes arising in connection with respect to current operations or property presently ownedthe sales of property.
(df) The information shown on Company has no earnings and profits attributable to any non-REIT year within the federal income Tax Returns meaning of Section 857 of the Code.
(g) Section 3.10 of the Company and its Subsidiaries (true, correct and complete copies Disclosure Letter lists each Tax Protection Agreement to which the Company or a Company Subsidiary is a party. Copies of which all such agreements have been furnished by the Company delivered to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shownParent. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither Neither the Company nor any Company Subsidiary has been notified regarding any pending audit, except as shown is in Section 3.11(d) violation of the Disclosure Scheduleor in default under a Tax Protection Agreement.
(eh) Neither the Company nor any Company Subsidiary is a party to any tax sharing agreement understanding or arrangement, except as set forth arrangement described in Section 3.11(e6662(d)(2)(C)(ii) of the Disclosure ScheduleCode or treasury Regulations Section 1.6011-4(b) or is a material advisor as defined in Section 6111(b) of the Code.
(fi) The Company has the right to make or to require, and, after the Acceptance Time will continue to have the right to make or to require, each Company Subsidiary that is subject to federal income taxation as a partnership to make an election under Section 754 of the Code (and any corresponding elections under state or local law) to adjust the basis of its property as provided in Sections 734(b) and 743(b) of the Code.
(j) Neither the Company nor any Subsidiary of its predecessors in interest has ever breached any representations, warranties and covenants of, and the Company and its predecessors in interest have each complied with all of their obligations under, (i) filed a consent under Section 341(fthose certain sale or transfer agreements and any related agreements (the “REMIC Transfer Agreements”) pursuant to which the Company (or its predecessors) transferred certain REMIC interests, whole loans, or certificates issued by GNMA, FNMA, or FHLMC to the Structured Mortgage Trust 1997-1 or any other trust or pool of assets (collectively, the Code concerning collapsible corporations “CMBS Pools”) and obligations payable from such trust or pool of assets, including certificates of beneficial interest, notes, bonds, or comparable instruments were issued, and (ii) undergone an "ownership change" within those certain agreements (the meaning “Servicing Agreements”) pursuant to which the Company (or its predecessor) provided certain mortgage servicing, administrative, and other services to issuers of REMIC interests, collateralized mortgage obligations, or other notes or certificates payable from the proceeds of mortgage loans (including certificates issued by GNMA, FNMA, or FHLMC) or REMIC regular interests. After the date hereof, the Company has no material liability or obligations under any such agreements. In connection with any issuance of securities described in this Section 382(g) 3.10(j), the Company and its predecessor in interest complied with all relevant laws. Set forth on Section 3.10 of the Code, except as set forth Company Disclosure Letter is a list of all CMBS Pools in Section 3.11(f) of which the Disclosure ScheduleCompany or any Company Subsidiary owns an ownership interest.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Land Lease Inc), Merger Agreement (GCP Sunshine Acquisition, Inc. A Delaware Corp)
Tax Matters. (a) Each of the The Company and each Company Subsidiary has in accordance have timely filed with the appropriate Tax Authority all Applicable Laws filed all income and other material Tax Returns which are required to be filed, in the manner required by applicable Law, taking into account any extensions of time within which to file such Tax Returns, and has paidall such Tax Returns were true, correct, complete and accurate, subject in each case to such exceptions as have not had and would not reasonably be expected to have, individually or made adequate provision for in the payment ofaggregate, all a Company Material Adverse Effect. All material Taxes which have or may become due and payable pursuant by the Company or any Company Subsidiary have been paid within the time and in the manner required by applicable Law (whether or not shown or required to said Returns be shown on a Tax Return).
(b) Except as has not had and all as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) there are no audits, claims, assessments, administrative proceedings, judicial proceedings or other governmental charges and assessments received proceedings pending with regard to date. The any Taxes or Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the or any Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither Subsidiary; (ii) neither the Company nor any Company Subsidiary has executed received a written notice or announcement of any waiver to extendaudits, claims, assessments, administrative proceedings, judicial proceedings or otherwise taken or failed to take other proceedings; (iii) neither the Company nor any action that would have the effect of extending, the applicable Company Subsidiary has waived any statute of limitations in with respect to Taxes or agreed to any extension of time with respect to any Tax liabilities assessment or deficiency for any open tax year; and (iv) there are no assessments, claims, adjustments, or deficiencies with respect to Taxes against the Company or any Company Subsidiary that remains unpaid.
(c) There are no Tax Liens upon any property or assets of the Company or any Company Subsidiary except Liens for the fiscal year prior to current Taxes not yet due and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements payable and Liens for all Taxes of any kindbeing contested in good faith by appropriate proceedings, including interest and penalties in respect thereofeach case, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not appropriate reserves have been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth up in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively accordance with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleGAAP.
(bd) Each of Subject to such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof Material Adverse Effect, neither the Company nor any Company Subsidiary has made any payment on account is liable for the Taxes of any Taxes except regular payments required other Person (other than the Company or a Company Subsidiary) under Treasury Regulation 1.1502-6 or any similar provision of state, local or foreign Tax Law, by contract, by assumption, by operation of Law, or as a transferee or successor.
(e) Other than assets subject to Section 168(g)(1)(A) of the Code held by a Company Subsidiary that is not a U.S. Person, none of the assets of the Company or any Company Subsidiary (i) are “tax exempt use property” within the meaning of Section 168(h) of the Code or is otherwise subject to the restrictions provided in Section 168(f), (g), (h) or (i) of the ordinary course Code or (ii) directly or indirectly secure any debt the interest on which is tax exempt under Section 103(a) of business the Code.
(f) The Company and the Company Subsidiaries have complied with the normalization rules described in Section 168(i)(9) of the Code and any other applicable provisions of the Code or Regulations with respect to current operations or any public utility property presently owned(as defined in Section 168(i)(10) of the Code).
(dg) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (trueSince January 1, correct and complete copies of which have been furnished by the Company to VIALOG) is true2008, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Company Subsidiary has been notified regarding a party to any pending audit, except transaction treated by the parties thereto as shown in a distribution to which Section 3.11(d355 of the Code applied.
(h) The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Disclosure ScheduleCode during the five-year period ending on the Closing Date.
(ei) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed engaged in any transaction that gives rise to a consent disclosure obligation as a “reportable transaction” under Section 341(f) 6011 of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within and the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure ScheduleTreasury Regulations thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Agl Resources Inc), Merger Agreement (Nicor Inc)
Tax Matters. (a) Each All notices, returns (including any land transaction returns), reports, accounts, computations, statements, assessments and registrations and any other necessary information submitted by the Company or any Subsidiary to any Taxing Authority for the purposes of Taxation have been made on a proper basis, were submitted within applicable time limits, were accurate and complete in all material respects when supplied and remain accurate and complete in all material respects. None of the above is, or is likely to be, so far as the Sellers are aware, the subject of any material dispute with any Taxing Authority.
(b) All Taxation (whether of the UK or elsewhere), for which the Company or any Subsidiary has been liable or is liable to account for, has been duly paid (insofar as such Taxation ought to have been paid).
(c) The Company and each Subsidiary has have, within applicable time limits, maintained all records in accordance with all Applicable Laws filed all Tax Returns which relation to Taxation as they are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to datemaintain. The Tax Returns of the Company and each Subsidiary have been prepared in accordance complied within applicable time limits with all Applicable Laws notices served on them and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required any other requirements lawfully made of them by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleTaxing Authority.
(bd) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither Neither the Company nor any Subsidiary has made any payment on account payments representing instalments of corporation tax pursuant to the Corporation Tax (Instalment Payments) Regulations 1998 in respect of any Taxes except regular payments required in the ordinary course of business with respect current or preceding accounting periods and is not under any obligation to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduledo so.
(e) Neither the Company nor any Subsidiary is a party has paid, within the past seven years ending on the date of this Agreement, or will become liable to pay any tax sharing agreement penalty, fine, surcharge or arrangement, except as set forth in Section 3.11(e) interest charged by virtue of the Disclosure ScheduleTMA 1970 or any other Taxation Statute.
(f) All Taxation and national insurance deductible and payable under the PAYE system and/or any other Taxation Statute has, so far as is required to be deducted, been deducted from all payments made (or treated as made) by the Company or any Subsidiary. All amounts due to be paid to the relevant Taxing Authority prior to the date of this Agreement have been so paid, including without limitation all Tax chargeable on benefits provided for directors, employees or former employees of the Company or any Subsidiary or any Persons required to be treated as such.
(g) As at 19 February 2007, neither the Company nor any Subsidiary is involved in any dispute with any Taxing Authority and has not, within the past 12 months, been subject to any non-routine visit, audit, investigation, discovery or access order by any Taxing Authority. The Sellers are not aware of any circumstances existing which make it likely that a non-routine visit, audit, investigation, discovery or access order will be made in the next 12 months. Schedule 4.10(g) contains details of any concession, agreements or other formal or informal arrangement (that is, an arrangement which is not based on a strict interpretation of all relevant Taxation legislation, published extra-statutory concessions and published statements of practice) with any Taxing Authority.
(h) Schedule 4.10(h) contains details of all transactions, schemes or arrangements in respect of which the Company or any Subsidiary has been a party or has been involved for which a statutory clearance application was made. Schedule 4.10(h) also contains copies of all relevant applications for clearances and copies of all clearances obtained in connection with such transactions, schemes or arrangements. All such clearances have been obtained on the basis of full and accurate disclosure of all material facts and considerations relating thereto. All such transactions, schemes or arrangements have been implemented strictly in accordance with the terms of such clearances.
(i) Neither the Company nor any Subsidiary is liable to make to any Person (including any Taxing Authority) any payment in respect of any liability to Taxation which is primarily or directly chargeable against, or attributable to, any other Person (other than the Company or any Subsidiary).
(j) The Audited Financial Statements make full provision or reserve within UK GAAP for any period ended on or before the date to which they were drawn up for all Taxation assessed or liable to be assessed on the Company or the relevant Subsidiary, or for which the Company or the relevant Subsidiary is accountable at that date, whether or not the Company or that Subsidiary has ever (ior may have) filed a consent under Section 341(f) any right of reimbursement against any other Person. Proper provision has been made and shown in the Code concerning collapsible corporations Financial Statements for deferred taxation in accordance with UK GAAP or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except international financial reporting standards as set forth in Section 3.11(f) of the Disclosure Scheduleapplicable.
Appears in 2 contracts
Samples: Share Purchase Agreement (Purpose Financial Holdings, Inc.), Share Purchase Agreement (Purpose Financial Holdings, Inc.)
Tax Matters. (a) Each Except as set forth in Section 3.11(a) of the Company and each Subsidiary Meridian Disclosure Schedule, Meridian has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and except with respect to failures to file which in the aggregate would not have a Material Adverse Effect on Meridian and, to Meridian's knowledge, has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Tax Returns and all other governmental charges and assessments received to datedate other than those Taxes being contested in good faith for which adequate provision has been made on the most recent balance sheet forming part of Meridian Financial Statements. The Tax Returns of the Company and each Subsidiary have Meridian have, to Meridian's knowledge, been prepared in all Material respects in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are Meridian is required by law to withhold and collect have have, to Meridian's knowledge, been duly withheld and collected collected, and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary Meridian has not executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary Meridian for the fiscal year years prior to and including the most recent fiscal year. Adequate Except as set forth in Section 3.11(a) of the Meridian Disclosure Schedule, adequate provision has has, to Meridian's knowledge, been made on the most recent balance sheet forming part of the Meridian Financial Statements for all Taxes accrued through the date of such balance sheet of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and there are, to the knowledge of the Company there are Meridian's knowledge, no past transactions or matters or any basis which might or could result in additional Taxes of any a Material nature to the Company or any Subsidiary Meridian for which an adequate reserve has not been provided on such balance sheet. Each Meridian is not a "consenting corporation" within the meaning of Section 341(f) of the Company and each Subsidiary Code. Meridian has since January 1, 1989 (i) at all times been taxable as a Subchapter C S corporation under the Code, and (ii) never been a member of any consolidated group for Tax purposes, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Meridian Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of Meridian for each of the Company and its Subsidiaries most recent five tax years (true, correct true and complete copies of which have been furnished by Meridian to ATS to the Company extent requested in writing by ATS) is, to VIALOG) is Meridian's knowledge, true, correct accurate and complete in all Material respects and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries Meridian have not been audited examined by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure SchedulesAuthority, and neither the Company nor any Subsidiary Meridian has not been notified regarding of any pending auditproposed examination, except as shown in Section 3.11(d3.11(b) of the Meridian Disclosure Schedule.
(ec) Neither the Company nor any Subsidiary Meridian is not a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Asset Purchase Agreement (American Tower Systems Corp), Asset Purchase Agreement (American Radio Systems Corp /Ma/)
Tax Matters. (a) Each of the The Company and each Subsidiary of the Company's Subsidiaries has in accordance with (A) duly and timely filed (or there has been filed on its behalf) all Applicable Laws filed all material Tax Returns which are (as defined below) required to be filedfiled by it (taking into account all applicable extensions) with the appropriate Tax Authority (as defined below), (B) paid all Taxes shown as due on such Tax Returns, except for such failures to file or pay which do not have, and has paidwould not reasonably be expected to have, individually or made adequate provision in the aggregate, a Material Adverse Effect on the Company.
(b) Except for such Liens which do not have, and would not reasonably be expected to have, individually or in the payment ofaggregate, all a Material Adverse Effect on the Company, there are no Liens for Taxes which have upon any property or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities assets of the Company or any Subsidiary of the Company's Subsidiaries except for the fiscal year prior to liens for Taxes not yet due and including payable or for which adequate reserves have been provided in accordance with GAAP in the most recent fiscal year. Adequate provision has been made on financial statements contained in the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and Company SEC Documents filed prior to the knowledge date of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payablethis Agreement.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business There is no audit, examination, deficiency, refund litigation or proposed adjustment with respect to current operations any Taxes other than those which do not have, and would not reasonably be expected to have, individually or property presently ownedin the aggregate, a Material Adverse Effect on the Company. As of the date hereof, none of the Company or its Subsidiaries has received notice in writing of any claim made by a Tax Authority in a jurisdiction where the Company or any of its Subsidiaries, as applicable, does not file a Tax Return, that the Company or such Subsidiary is or may be subject to material taxation by that jurisdiction, where such claim has not been resolved favorably to the Company or such Subsidiary.
(d) The information shown There are no outstanding written requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the assessment of any income Taxes or income Tax deficiencies against the Company or any of the Company's Subsidiaries, except, in each case, with respect to income Taxes or deficiencies, as the case may be, which do not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the federal income Tax Returns Company, and, as of the date hereof, no power of attorney granted by either the Company and or any of its Subsidiaries (true, correct and complete copies of which have been furnished by the Company with respect to VIALOG) any material Taxes is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth currently in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleforce.
(e) Neither the Company nor any Subsidiary of its Subsidiaries is a party to any tax agreement providing for the allocation, indemnification or sharing of Taxes other than such an agreement exclusively between or among the Company and any of its Subsidiaries, and neither the Company nor any of its Subsidiaries (A) has been a member of an affiliated group (or similar state, local or foreign filing group) filing a material consolidated income Tax Return (other than a group the common parent of which is the Company) or (B) has any material liability (including as a result of any agreement or arrangementobligation to reimburse or indemnify) for the Taxes of any other Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, except local or foreign Tax law), as set forth in Section 3.11(e) of the Disclosure Schedulea transferee or successor, by contract or otherwise.
(f) Neither the Company nor any Subsidiary has ever of its Subsidiaries has: (iA) filed agreed to make or is required to make any adjustment for a consent taxable period ending after the Effective Time under Section 341(f481(a) of the Code concerning collapsible corporations by reason of a change in accounting method or otherwise, except where such adjustments do not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; (B) constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (I) in the two years prior to the date of this Agreement or (iiII) undergone an in a distribution which could otherwise constitute part of a "ownership changeplan" or "series of related transactions" (within the meaning of Section 355(e) of the Code) in connection with the Merger; or (C) taken any action or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent the Merger from qualifying as a "reorganization" within the meaning of Section 382(g368(a) of the Code.
(g) The Company and its Subsidiaries will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Effective Time as a result of any "closing agreement" described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the date hereof, except as set forth for such inclusions or exclusions which do not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(h) The Company and each of its Subsidiaries is in material compliance with all applicable information reporting and Tax withholding requirements under federal, state and local Tax laws, except for such failures to comply which do not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(i) Section 3.11(f3.15(i) of the Company Disclosure ScheduleSchedule lists all foreign jurisdictions in which the Company and any of the Company's Subsidiaries files a material Tax Return.
(j) For purposes of this Agreement: (i) "Taxes" means any and all domestic or foreign, federal, state, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, unemployment, social security, workers' compensation or net worth, and taxes in the nature of excise, withholding, ad valorem or value added; (ii) "Tax Authority" means the Internal Revenue Service and any other domestic or foreign Governmental Entity responsible for the administration or collection of any Taxes; and (iii) "Tax Return" means any return, report or similar filing (including the attached schedules) required to be filed with respect to Taxes, including any information return, claim for refund, amended return, or declaration of estimated Taxes.
Appears in 2 contracts
Samples: Merger Agreement (Stanton John W), Merger Agreement (Western Wireless Corp)
Tax Matters. (a) Each of the Company and each Subsidiary its Subsidiaries (i) has filed (taking into account any extension of time within which to file) all income and other material Tax Returns required to have been filed by or with respect to the Company or any of its Subsidiaries, and all such Tax Returns are accurate and complete in accordance all material respects and were prepared in substantial compliance with all Applicable Laws filed applicable Laws, (ii) has paid all Taxes required to have been paid, whether or not shown as due on such Tax Returns which are required and (iii) has not received written notice of any proposed or assessed deficiencies for any Tax from any taxing authority, against the Company or any of its Subsidiaries.
(b) Neither the Company nor any of its Subsidiaries is the subject of any currently ongoing Tax audit or other proceeding with respect to be filed, and Taxes nor has paid, any Tax audit or made adequate provision for the payment of, all other proceeding with respect to Taxes which have or may become due and payable pursuant been proposed against any of them in writing. No issues relating to said Returns and all other governmental charges and assessments received to date. The Tax Returns material Taxes of the Company and each Subsidiary have been prepared or any of its Subsidiaries were raised by the relevant Tax authority in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableany completed audit or examination. Neither the Company nor any Subsidiary of its Subsidiaries has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax liabilities of the Company assessment or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group deficiency (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its extensions of time to file Tax Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required obtained in the ordinary course of business consistent with respect past practice) in either case that is still outstanding.
(c) The Company and each of its Subsidiaries has timely withheld and paid all Taxes required to current operations have been withheld and paid in connection with amounts paid or property presently ownedowing to any employee, independent contractor, creditor, stockholder or other Third Party.
(d) The information shown There are no Encumbrances for Taxes (other than Taxes not yet due and payable) on any of the federal income Tax Returns assets of the Company and or any of its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleSubsidiaries.
(e) Neither the Company nor any Subsidiary of its Subsidiaries is a party to or bound by any tax written Tax allocation, indemnification (including indemnification of Taxes with respect to service-providers) or sharing agreement (other than an agreement with the Company or arrangement, except as set forth any of its Subsidiaries and other than customary indemnifications for Taxes contained in credit or other commercial agreements the primary purposes of which do not relate to Taxes). Neither the Company nor any of its Subsidiaries is or has been a member of an affiliated group (other than a group the common parent of which is the Company) filing a consolidated U.S. federal income Tax Return. Neither the Company nor any of its Subsidiaries is liable under Treasury Regulations Section 3.11(e) 1.1502-6 (or any similar provision of the Disclosure ScheduleTax laws of any state, local or foreign jurisdiction), or as a transferee or successor, by contract, or otherwise, for any Tax of any Person other than the Company and its Subsidiaries.
(f) Neither the Company nor any Subsidiary has ever (i) filed of its Subsidiaries was a consent “distributing corporation” or “controlled corporation” in a transaction intended to qualify under Section 341(f) 355 of the Code concerning collapsible corporations within the past two years or otherwise as part of a “plan” or “series of related transactions” (ii) undergone an "ownership change" within the meaning of Section 382(g355(e) of the Code, except as set forth in ) that includes the Merger.
(g) The Company has not been a United States real property holding corporation within the meaning of Section 3.11(f897(c)(2) of the Disclosure ScheduleCode during the period specified in Section 897(c)(1)(A)(ii) of the Code.
(h) Neither the Company nor any of its Subsidiaries has entered into any transaction identified as a “listed transaction” within the meaning of Sections 1.6011-4(b)(2) or 301.6111-2(b)(2) of the Treasury Regulations or any similar provision of state, local, or foreign law.
(i) Neither the Company nor any of its Subsidiaries has taken or agreed to take any action nor to the Knowledge of the Company is there any fact or circumstance that would reasonably be expected to prevent or impede the Merger from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (BioNTech SE), Merger Agreement (Neon Therapeutics, Inc.)
Tax Matters. All tax returns and tax reports required to be filed with respect to the income, operations, business or assets of TEXEN have been timely filed (aor appropriate extensions have been obtained which extensions are listed on Schedule 3.20) Each of with the Company appropriate governmental agencies in all jurisdictions in which such returns and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which reports are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary foregoing as filed are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies in all material respects, and reflect accurately all Liabilities for taxes of TEXEN for the periods to which such returns relate, and all amounts shown as owing thereon have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shownpaid. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except Except as set forth in Section 3.11(e) on Schedule 3.20, all income, profits, franchise, sales, use, value added, occupancy, property, excise, payroll, withholding, FICA, FUTA and other taxes (including interest and penalties), if any, collectible or payable by TEXEN or relating to or chargeable against any of its assets, revenues or income or relating to any employee, independent contractor, creditor, stockholder or other third party through the Disclosure Schedule.
(f) Neither date hereof which were required to be collected and/or paid by TEXEN, were fully collected and paid by such date or provided for by adequate reserves. Except as set forth on Schedule 3.20, no taxation authority has since the Company nor date of TEXEN's incorporation, sought to audit the records of TEXEN for the purpose of verifying or disputing any Subsidiary tax returns, reports or related information and disclosures provided to such taxation authority, or for TEXEN's alleged failure to provide any such tax returns, reports or related information and disclosure. Except as provided on Schedule 3.20, no claims or deficiencies have been asserted against or inquiries raised with TEXEN with respect to any taxes or other governmental charges or levies which have not been paid or otherwise satisfied, including claims that, or inquiries whether, TEXEN has ever (i) not filed a tax return that it was required to file, and there exists no reasonable basis for the making of any such claims or inquiries. TEXEN has not waived any restrictions on assessment or collection of taxes or consented to the extension of any statute of limitations relating to taxation other than filing extensions as set forth on Schedule 3.20. TEXEN has not filed a consent under Section 341(f) of the Code concerning collapsible corporations corporations, is not and has never been a party to a tax allocation or (ii) undergone an "ownership change" sharing agreement or a member of a group filing a consolidated federal income tax return, and has not been a United States real property holding corporation within the meaning of Code Section 382(g) of 897 (c)(2), during the Code, except as set forth applicable period specified in Code Section 3.11(f) of the Disclosure Schedule897(c)(1)(A)(ii).
Appears in 2 contracts
Samples: Share Exchange Agreement (Texen Oil & Gas Inc), Share Exchange Agreement (Texen Oil & Gas Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except Except as set forth in Section 3.11(a) 3.11 of the Company Disclosure Schedule.
(b) Each of Letter the Company and each Subsidiary of its Subsidiaries has paid duly filed all Taxes which tax returns and reports required to be filed by it, or requests for extensions to file such returns or reports have become due pursuant to its Returns been timely filed and has paid all installments (granted and have not expired, except to the extent required that such failures to avoid file, in the aggregate, would not have a Material Adverse Effect and such returns and reports are true, correct and complete in all material underpayment penalties) of estimated Taxes due respects. The Company and payable.
(c) From the end each of its Subsidiaries has duly paid in full (or the Company has paid on its behalf) or made adequate provision in the Company's accounting records for all taxes for all past and current periods for which the Company or any of its Subsidiaries is liable. The most recent fiscal year financial statements contained in the Company SEC Reports reflect adequate reserves for all taxes payable by the Company and its Subsidiaries for all taxable periods and portions thereof accrued through the date of such financial statements, and no deficiencies for any taxes have been proposed, asserted or assessed against the Company or any of its Subsidiaries that are not adequately reserved for, except for inadequately reserved taxes and inadequately reserved deficiencies that would not, in the aggregate, have a Material Adverse Effect. No requests for waivers of the time to assess any taxes against the Company or any of its Subsidiaries have been granted or are pending, except for requests with respect to such taxes that have been adequately reserved for in the most recent financial statements contained in the Company SEC Reports, or, to the date hereof extent not adequately reserved, the assessment of which would not, in the aggregate, have a Material Adverse Effect. Except as set forth in Section 3.11 of the Company Disclosure Letter, neither the Company nor any Subsidiary of its Subsidiaries has made any payment on account of payments, is obligated to make any Taxes except regular payments required in the ordinary course of business with respect to current operations payments, or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor that under certain circumstances could obligate it to make any Subsidiary has ever (i) filed a consent payments that will not be deductible under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) 280G of the Code. As used in this Agreement the term "taxes" includes all federal, except as set forth in Section 3.11(f) of the Disclosure Schedulestate, local and foreign income, franchise, property, sales, use, excise and other taxes, including without limitation obligations for withholding taxes from payments due or made to any other person and any interest, penalties or additions to tax.
Appears in 2 contracts
Samples: Merger Agreement (Paragon Health Network Inc), Merger Agreement (Mariner Health Group Inc)
Tax Matters. (ai) Each Any and all existing Tax sharing, allocation, compensation or like agreements or arrangements, whether or not written, that include any of the Company Subsidiaries, including without limitation any arrangement by which any of the Subsidiaries makes compensating payments to each other or any other member of any affiliated, consolidated, combined, unitary or other similar Tax group for the use of certain tax attributes, shall be terminated as to the Subsidiaries on or prior to the Closing Date (pursuant to a writing executed on or before the Closing Date by all parties concerned) and shall have no further force or effect as to the Subsidiaries. Any and all powers of attorney relating to Tax matters concerning any of the Subsidiaries shall be terminated as to that Subsidiary on or prior to the Closing Date and shall have no further force or effect.
(ii) After the Closing Date, Purchaser and Seller shall provide each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filedother, and has paidPurchaser shall cause the Subsidiaries to provide Seller, with such cooperation and information relating to the Subsidiaries as either party reasonably may request in (A) filing any Tax return, amended return or made adequate provision claim for refund, (B) determining any Tax liability or a right to refund of Taxes, (C) conducting or defending any audit or other proceeding in respect of Taxes or (D) effectuating the payment ofterms of this Agreement. The parties shall retain, and Purchaser shall cause the Subsidiaries to retain, all Taxes which have or may become due returns, schedules and payable pursuant to said Returns work papers, and all material records (including accounting records) and other governmental charges and assessments received to date. The Tax Returns documents relating thereto, until the expiration of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely mannerstatute of limitation (and, to the proper Authorities extent notified by any party, any extensions thereof) of the taxable years to which such returns and other documents relate and, unless such returns and other documents are offered and delivered to Seller or Purchaser, as applicable, until the extent due and payable. Neither the Company nor final determination of any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations Tax in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal yearsuch years. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation Any information obtained under the Codethis Section 8(f)(ii) shall be kept confidential, except as may be otherwise set forth necessary in Section 3.11(a) connection with filing any Tax return, amended return, or claim for refund, determining any Tax liability or right to refund of Taxes, or in conducting or defending any audit or other proceeding in respect of Taxes. Notwithstanding the Disclosure Schedule. Neither the Company foregoing, neither Seller nor Purchaser, nor any Subsidiary has ever been of their affiliates, shall be required unreasonably to prepare any document, or determine any information not then in its possession, in response to a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in request under this Section 3.11(a) of the Disclosure Schedule8(f)(ii).
(biii) Each of Purchaser shall have received, on or before the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required Closing Date, an affidavit in the ordinary course form of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (trueExhibit E that Xxxx Ontario Holding, correct and complete copies of which have been furnished by the Company to VIALOG) Inc. is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is not a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership changeforeign person" within the meaning of Code Section 382(g1445. If, on or before the Closing Date, Purchaser shall not have received such affidavit, Purchaser may withhold from the Purchase Price payable at Closing to the Seller pursuant hereto such sums as are required to be withheld therefrom under Code Section 1445.
(iv) Seller shall pay when due, any transfer, gains, documentary, sales, use, registration, stamp, value added or other similar Taxes payable by reason of the Codetransactions contemplated by this Agreement or attributable to the sale, except as set forth in Section 3.11(f) transfer or delivery of the Disclosure ScheduleAcquired Shares hereunder, and Purchaser shall reimburse Seller one-half of any such payment, provided that the amount of reimbursement by Purchaser shall not exceed $500,000. Seller shall, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes.
Appears in 2 contracts
Samples: Purchase Agreement (Arrow Electronics Inc), Purchase Agreement (Arrow Electronics Inc)
Tax Matters. Except as does not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Ultimate Parent:
(a) Each All Tax Returns required to be filed by, or on behalf of, Ultimate Parent or any of the Company and each Subsidiary has its subsidiaries have been timely filed, or will be timely filed, in accordance with all Applicable applicable Laws filed and all such Tax Returns which are required to be filed, and has paidwere, or made adequate provision for will be at the payment oftime of filing, complete and accurate. Ultimate Parent and each of its subsidiaries has timely paid (or has had paid on its behalf) in full all Taxes which have or may become due and payable pursuant except with respect to said Returns matters contested in good faith and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary for which adequate reserves have been prepared established in accordance with all Applicable Laws and generally accepted principles applicable GAAP. There are no Liens with respect to taxation consistently applied. All Taxes which upon any of the Company and each Subsidiary are required by law assets or properties of Ultimate Parent or any of its subsidiaries, other than with respect to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent Taxes not yet due and payable.
(b) No deficiencies for any Taxes have been proposed or assessed in writing against Ultimate Parent or any of its subsidiaries, and there is no outstanding audit, assessment, dispute or claim concerning any Tax liability of Ultimate Parent or any of its subsidiaries either within Ultimate Parent's knowledge or claimed, pending or raised by a Taxing Authority in writing. During the last three (3) years, no claim has been made in writing by any Governmental Entity in a jurisdiction where any of Ultimate Parent or its subsidiaries does not file Tax Returns that such entity is or may be subject to taxation by that jurisdiction. Neither the Company Ultimate Parent nor any Subsidiary of its subsidiaries has executed waived in writing any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in with respect of to Taxes for any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal open tax year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a.
(c) of the Disclosure Schedule. Neither the Company Ultimate Parent nor any Subsidiary of its subsidiaries (i) is or has ever been a member of any consolidated a group (other than exclusively with a group the Company common parent of which is Parent) filing a consolidated, combined, affiliated, unitary or similar income Tax Return or (ii) has any liability for Taxes of any Person, other than Parent and any of its Subsidiaries) for Tax purposessubsidiaries, except as set forth in Section 3.11(a) by reason of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent filing or being required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations file a consolidated, combined, affiliated, unitary or property presently ownedsimilar income Tax Return, or as a transferee or successor, by contract or otherwise.
(d) The information shown on None of Ultimate Parent or any of its subsidiaries is a party to, is bound by or has any obligation under any Tax sharing or Tax indemnity agreement or similar contract or arrangement, other than (i) agreements solely between or among Ultimate Parent and/or any of its subsidiaries or (ii) agreements entered into in the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company ordinary course that do not relate primarily to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleTaxes.
(e) Neither None of Ultimate Parent or any of its subsidiaries has been either a "distributing corporation" or a "controlled corporation" in a distribution occurring during the Company nor any Subsidiary is a party last two years in which the parties to any tax sharing agreement or arrangement, except such distribution treated the distribution as set forth in one to which Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) 355 of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Scheduleis applicable.
Appears in 2 contracts
Samples: Merger Agreement, Agreement and Plan of Merger
Tax Matters. (a) Each of (i) All material Returns relating to Spinco, the Company Spinco Business and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are the Spinco Subsidiaries required to be filed on or prior to the Closing Date have been timely filed, (ii) all such Returns are true, correct and has complete in all material respects, (iii) all material Taxes relating to Spinco, the Spinco Business or any Spinco Subsidiary required to be paid on or prior to the Closing Date have been timely paid, (iv) all material Taxes relating to Spinco, the Spinco Business and the Spinco Subsidiaries for any taxable period (or made adequate provision a portion thereof) beginning on or prior to the Closing Date (which are not yet due and payable) have been properly reserved for in the payment ofHeinz SEC Documents, and (v) Heinz, Spinco, and the Spinco Subsidiaries have duly and timely withheld all material Taxes relating to the Spinco Business required to be withheld and such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or properly set aside in accounts for such purpose and will be duly and timely paid to the proper Governmental Authority except for failures with respect to matters covered under clauses (a)(i)-(iv) which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Spinco.
(i) No audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes or material Return of Heinz, Spinco or any Spinco Subsidiary relating to the Spinco Business as to which any taxing authority has asserted in writing any claim which, if adversely determined, would have a Material Adverse Effect on Spinco, and (ii) no Governmental Authority is now asserting in writing any deficiency or claim for material Taxes or any adjustment to material Taxes relating to the Spinco Business with respect to which Spinco or any Spinco Subsidiary may be liable with respect to income and other material Taxes which have not been fully paid or may become due and payable pursuant finally settled which would, individually or in the aggregate, reasonably be expected to said Returns and all have a Material Adverse Effect on Spinco.
(c) Neither Spinco nor any Spinco Subsidiary (i) is a party to or bound by or has any obligation under any written Tax allocation, sharing or similar agreement or arrangement other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance than with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, respect to the proper Authorities to group for which Heinz is the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendcommon Parent, or otherwise taken (ii) is or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated consolidated, combined or unitary group for purposes of filing Returns or paying Taxes (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) group of which Heinz is the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently ownedcommon Parent).
(d) The information shown on the federal income Tax Returns None of the Company and assets of Heinz or any of its Subsidiaries (true, correct with respect to the Spinco Business only) or Spinco or any of its Subsidiaries are subject to any material Tax lien (other than liens for Taxes that are not yet due or that are being contested in good faith by appropriate proceedings and complete copies of which have been furnished by properly reserved (other than reserves for deferred Taxes reflecting differences between book and tax bases in assets and liabilities ) in the Company to VIALOG) is true, correct books and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns records of the Company and its Subsidiaries have been audited by the IRS Heinz or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleSpinco).
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Del Monte Foods Co), Merger Agreement (Heinz H J Co)
Tax Matters. (a) (i) Each of the Company income (or franchise) and each Subsidiary has in accordance with all Applicable Laws filed all other material Tax Returns which are required to be filedfiled by or on behalf of an Acquired Corporation with any Governmental Body have been filed on or before the applicable due date (including any extensions of such due date), and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws applicable Legal Requirements, and generally accepted principles are accurate and complete, in each case in all material respects, and (ii) all income (or franchise) and other material Taxes due and payable by an Acquired Corporation (whether or not shown on any Tax Returns) have been paid, and all material Taxes required to be withheld (including with respect to payment or allocations made to any current or former employee, independent contractor, other service provider, creditor, shareholder, customer, vendor or other third party) by any Acquired Corporation have been withheld and paid, in each case, to the relevant Governmental Body.
(b) To the knowledge of the Company, (i) there are no pending examinations or audits of any Tax Return in progress involving material Taxes and (ii) no written claim has been received by any Acquired Corporation from any Governmental Body in any jurisdiction where such Acquired Corporation does not file Tax Returns that such Acquired Corporation is or may be subject to Taxes in that jurisdiction. No Acquired Corporation is, or has been, subject to Tax in any jurisdiction other than its place of organization by virtue of having a permanent establishment (as defined by applicable Tax treaty) or other place of business or taxable presence in that jurisdiction. No extension or waiver of the statute of limitation period applicable to taxation consistently appliedany income (or franchise) or other material Tax Returns of any Acquired Corporation has been granted and is currently in effect other than automatic extensions or automatic waivers obtained in the ordinary course of business.
(c) Adequate reserves have been established on the Company’s consolidated financial statements to provide for the payment of any Taxes which are not yet due and payable with respect to any Acquired Corporation for taxable periods or portions thereof ending on or before the date of the most recent financial statements of the Company. All Taxes which of the Acquired Corporations incurred through the date of the most recent financial statements of the Company do not exceed Taxes accrued on such financial statements, and each Subsidiary are required all Taxes of the Acquired Corporations accrued following the end of the most recent period covered by law to withhold and collect the most recent financial statements of the Company have been duly withheld and collected and have been paid overaccrued in the ordinary course of business.
(d) To the knowledge of the Company, in a timely mannerno Legal Proceeding involving the IRS or any other Governmental Body is pending, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendongoing, or otherwise taken has been threatened in writing against or failed with respect to take any action that would have the effect of extending, the applicable statute of limitations Acquired Corporation in respect of any income or other material Tax, and no deficiency of income or other material Taxes has been asserted in writing as a result of any audit or examination by any Governmental Body that has not been paid.
(e) No Acquired Corporation (i) has been a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax liabilities Return (other than a group the common parent of which is or was the Company or another Acquired Corporation), or (ii) has any material liability for the Taxes of any other Person (other than another Acquired Corporation) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. law), or as a transferee or successor or otherwise (other than pursuant to agreements not primarily related to Taxes and entered into in the ordinary course of business).
(f) During the two (2)-year period ending on the date of this Agreement, none of the Acquired Corporations has been either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.
(g) No Acquired Corporation has participated in any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b) or any comparable provision of state, local or non-U.S. law (including European Council Directive 2011/16 (“DAC 6”) and domestic implementation of DAC 6). Each Acquired Corporation has disclosed on its U.S. federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of U.S. federal income Tax within the meaning of Section 6662 of the Code (or any corresponding or similar provision of state, local or non-U.S. law).
(h) No Acquired Corporation will be required to include any material item of income in, or exclude any material item of deduction from, the computation of taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date as a result of transactions or events occurring, or accounting methods employed, prior to the Closing, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax law) executed prior to the Closing, (iii) installment sale, intercompany transaction or open transaction disposition made prior to the Closing, or any “excess loss account” within the meaning of the regulations under Section 1502 of the Code (or any analogous or similar provision of state, local or non-U.S. Tax law) existing as of immediately prior to the Closing, or (iv) prepaid amount or any other income eligible for deferral under the Code or Treasury Regulations promulgated thereunder (including, without limitation, pursuant to Sections 451, 455 or 456 of the Code) received on or prior to the Closing Date
(i) None of the Acquired Corporations has made an election under Section 965(h) of the Code or otherwise has any liability for Taxes pursuant to Section 965 of the Code that has not been fully paid to the appropriate Governmental Body.
(j) No Acquired Corporation is party to, bound by or has any obligation under any Tax allocation or Tax sharing agreement or any express or implied Tax indemnity or other Tax allocation agreement or arrangement with any Person, other than any agreement not primarily related to Taxes and entered into in the ordinary course of business.
(k) There are no material Encumbrances with respect to Taxes upon any of the assets or properties of any Acquired Corporation, other than Permitted Encumbrances.
(l) Section 2.15(l) of the Company Disclosure Schedule discloses for each Acquired Corporation (i) all applied for or received loans or payments under the CARES Act and COVID Relief Programs, (ii) Tax credits claimed under the CARES Act and COVID Relief Programs and (iii) any Subsidiary other credits, deferrals (including any deferral of the employer portion of any payroll Taxes) or benefits available that any Acquired Corporation availed itself of under the CARES Act and COVID Relief Programs. None of the Acquired Corporations will have any liability for Taxes with respect to any relief claimed under the fiscal year CARES Act and COVID Relief Programs for any Tax period (or portion thereof) prior to the Closing in a Tax period (or portion thereof) beginning after the Closing.
(m) Each Acquired Corporation has timely and including the most recent fiscal year. Adequate provision has been made accurately filed all required foreign accounts on the most recent balance sheet forming part a Report of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided Foreign Bank Accounts on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except FinCEN Form 114.
(n) Except as otherwise set forth in Section 3.11(a2.15(n) of the Company Disclosure Schedule, none of the Acquired Corporations has been or is currently the beneficiary of a Tax holiday (or similar benefit) from any Governmental Body. Neither the Company nor The Acquired Corporations are, and have been, in full compliance with any Subsidiary has ever been a member of Tax holiday (or similar benefit) from any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth Governmental Body disclosed in Section 3.11(a2.15(n) of the Company Disclosure Schedule.
(bo) Each None of the Company and each Subsidiary Acquired Corporations owns, directly or indirectly, any equity interest in a “passive foreign investment company” within the meaning of Section 1297 of the Code (“PFIC”) or has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payableever been classified as a PFIC.
(cp) From All transactions entered into or conducted by any Acquired Corporation with any Person who is a member of the end “controlled group” (within the meaning of its most recent fiscal year Treasury Regulations Section 1.482-1 or any similar or comparable provision of any state, local or non-U.S. law) of which such Acquired Corporation is a member have been made in material compliance with Section 482 of the Code and the Treasury Regulations thereunder and no Governmental Body has imposed or, to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns knowledge of the Company and its Subsidiaries (trueCompany, correct and complete copies of which have been furnished by the Company has a basis to VIALOG) is trueimpose, correct and complete and fairly and accurately reflects the information purported to be shownany different terms on any such transactions. Federal and state income Tax Returns None of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary Acquired Corporations is a party to any tax sharing agreement advance pricing agreement, or arrangementany similar contract or agreement, except as set forth in Section 3.11(e) of the Disclosure Schedulewith any Governmental Body.
(fq) Neither None of the Company nor any Subsidiary Acquired Corporations has ever filed (or has had filed on its behalf) a request for (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or private letter ruling, (ii) undergone an "ownership change" technical advice, or (iii) change of any method of accounting, in each case, with any Governmental Body that relates to Taxes or Tax Returns of any of the Acquired Corporations.
(r) None of the Acquired Corporations has (i) entered into any settlement or arrangement (including a closing agreement within the meaning of Section 382(g) 7121 of the CodeCode or a comparable or similar provision of state, except as set forth local or non-U.S. law) with any Governmental Body that would be binding and result in Section 3.11(fa material Tax liability for any Tax period (or portion thereof) ending after the Closing Date or (ii) granted any power of attorney with respect to any Taxes that will be in force following the Closing.
(s) None of the Disclosure ScheduleAcquired Corporations violated any antiboycott prohibitions, or failed to comply with the reporting requirements, of the Tax Reform Act of 1976 (26 U.S.C. § 999).
Appears in 2 contracts
Samples: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)
Tax Matters. (a) Each of the Company and the Subsidiaries has properly filed on a timely basis all Tax Returns that it was required to file, and all such Tax Returns are true, correct and complete in all material respects and were prepared in compliance with all applicable Laws. Each of the Company and the Subsidiaries has paid on a timely basis all Taxes, whether or not shown on any Tax Return, that were due and payable. The unpaid Taxes of the Company and each Subsidiary has (i) for Tax periods through the date of the Most Recent Balance Sheet do not exceed the accruals and reserves for Taxes (excluding accruals and reserves for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Most Recent Balance Sheet and (ii) for Tax periods through the Closing Date, will not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with all Applicable Laws filed GAAP. All unpaid Taxes of the Company and each Subsidiary for all Tax Returns periods commencing after the date of the Most Recent Balance Sheet arose in the Ordinary Course of Business.
(b) All material Taxes that the Company or any Subsidiary is or was required by Law to withhold or collect have been duly withheld or collected and, to the extent required, have been properly paid to the appropriate Governmental Entity, and each of the Company and any Subsidiary has complied with all information reporting and backup withholding requirements, including the maintenance of required records with respect thereto, in connection with amounts paid to any Company Employee, independent contractor, creditor, or other third party.
(c) Neither the Company nor any Subsidiary is or has ever been a member of an affiliated group with which are it has filed (or been required to be filedfile) consolidated, and combined, unitary or similar Tax Returns. Neither the Company nor any Subsidiary (i) has paidany liability under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of federal, state, local or foreign Law), as a transferee or successor, pursuant to any contractual obligation, or otherwise for any Taxes of any Person other than the Company or any Subsidiary, or (ii) is a party to or bound by any Tax indemnity, Tax sharing, Tax allocation or similar agreement.
(d) The Company made adequate provision for available to the payment of, Buyer (i) complete and correct copies of all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each any Subsidiary relating to Taxes for all taxable periods for which the applicable statute of limitations has not yet expired, (ii) complete and correct copies of all private letter rulings, revenue agent reports, information document requests, notices of proposed deficiencies, deficiency notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests and any similar documents submitted by, received by, or agreed to by or on behalf of the Company or any Subsidiary relating to Taxes for all taxable periods for which the statute of limitations has not yet expired, and (iii) complete and correct copies of all material agreements, rulings, settlements or other Tax documents with or from any Governmental Entity relating to Tax incentives of the Company or any Subsidiary.
(e) No examination or audit or other action of or relating to any Tax Return of the Company or any Subsidiary by any Governmental Entity is currently in progress or, to the Knowledge of the Company, threatened or contemplated. No deficiencies for Taxes of the Company or any Subsidiary have been prepared claimed, proposed or assessed in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required writing by law to withhold and collect any Governmental Entity that have not been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payablefinally settled. Neither the Company nor any Subsidiary has executed been informed in writing by any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations jurisdiction in respect of any Tax liabilities of which the Company or any Subsidiary for does not file a Tax Return that the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to jurisdiction believes that the Company or any Subsidiary for which an adequate reserve has was required to file any Tax Return that was not been provided on filed or is subject to Tax in such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedulejurisdiction. Neither the Company nor any Subsidiary has ever been a member (i) waived any statute of limitations with respect to Taxes or agreed to extend the period for assessment or collection of any consolidated group Taxes, which waiver or extension is still in effect, (other than exclusively ii) requested any extension of time within which to file any Tax Return, which Tax Return has not yet been filed, or (iii) executed or filed any power of attorney with any taxing authority, which is still in effect.
(f) [Intentionally deleted.]
(g) None of the assets of the Company and its Subsidiaries) for Tax purposes, except as set forth in or any Subsidiary is “tax-exempt use property” within the meaning of Section 3.11(a168(h) of the Disclosure ScheduleCode or directly or indirectly secures any debt the interest on which is tax exempt under Section 103(a) of the Code.
(bh) Each Neither the Company nor any Subsidiary will be required to include any item of income in taxable income for any period (or portion thereof) ending after the Closing Date that is attributable to income economically realized in any period (or portion thereof) ending on or before the Closing Date or has claimed in a period (or portion thereof) ending on or before the Closing Date an item of deduction economically attributable to any period (or portion thereof) ending after the Closing Date, including as a result of (i) any adjustments under Section 481 of the Code (or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax Law), (ii) deferred intercompany gain or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax Law), (iii) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) executed on or prior to the Closing Date, (iv) installment sale or open transaction disposition made on or prior to the Closing Date, (v) prepaid amount received on or prior to the Closing Date, or (vi) any election made pursuant to Section 108(i) of the Code on or prior to the Closing Date.
(i) Neither the Company nor any Subsidiary has distributed to its shareholders or security holders stock or securities of a controlled corporation, nor has stock or securities of the Company and each or any Subsidiary has paid all Taxes been distributed, in a transaction to which have become due pursuant to its Returns and has paid all installments Section 355 of the Code applies (i) in the two (2) years prior to the extent required to avoid material underpayment penaltiesdate of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of estimated the Code) that includes the transactions contemplated by this Agreement.
(j) There are no Liens with respect to Taxes upon any of the assets of the Company or any Subsidiary, other than with respect to Taxes not yet due and payable.
(ck) From Section 3.9(k) of the end Company Disclosure Schedule sets forth each jurisdiction (other than United States federal) in which the Company or any Subsidiary files, is required to file or has been required to file a Tax Return or is or has been liable for any Taxes on a “nexus” basis and each jurisdiction that has sent notices or communications of its most recent fiscal year any kind in writing requesting information relating to the date hereof Company’s or any Subsidiary’s nexus with such jurisdiction. Section 3.9(k) of the Company Disclosure Schedule lists all Tax Returns (and their respective due dates without regard to extensions) required to be filed by the Company or any Subsidiary for periods beginning before the Closing Date that will not be filed on or before the Closing Date.
(l) Neither the Company nor any Subsidiary (i) is a party to any joint venture, partnership, or other arrangement that is treated as a partnership for federal income Tax purposes, (ii) has made an entity classification (“check-the-box”) election under Section 7701 of the Code, (iii) is, or is a shareholder of, a “controlled foreign corporation” as defined in Section 957 of the Code (or any similar provision of state, local or foreign Law), or (iv) is, or is a shareholder in, a “passive foreign investment company” within the meaning of Section 1297 of the Code.
(m) All related party transactions involving the Company or any Subsidiary have been conducted at arm’s length in compliance with Section 482 of the Code and the Treasury Regulations promulgated thereunder and any comparable provisions of any other Tax Law. Each of the Company and the Subsidiaries has maintained documentation (including any applicable transfer pricing studies) in connection with such related party transactions in accordance with Sections 482 and 6662 of the Code and the Treasury Regulations promulgated thereunder and any comparable provisions of any other Tax Law.
(n) Other than the United States permanent establishment of Viventia Bio USA Inc., neither the Company nor any Subsidiary has made or has had a permanent establishment in any payment on account country (other than its country of incorporation) as defined in any Taxes except regular payments required in the ordinary course applicable Tax treaty or convention between its country of business with respect to current operations or property presently ownedincorporation and another country.
(do) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither Neither the Company nor any Subsidiary has been notified regarding engaged in a “reportable transaction” as set forth in Treasury Regulation section 1.6011-4(b) or a “listed transaction” as set forth in Treasury Regulation section 301.6111-2(b)(2) or any pending audit, except as shown in Section 3.11(d) analogous provision of state or local Law. Each of the Disclosure ScheduleCompany and the Subsidiaries has disclosed on its federal income Tax Returns or has substantial authority for all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code.
(ep) Neither the Company nor any Subsidiary is a party to any tax sharing a gain recognition agreement or arrangement, except as set forth in under Section 3.11(e) 367 of the Disclosure ScheduleCode.
(fq) Neither All research and development investment tax credits (“ITCs”) were claimed by the Company nor and each Subsidiary in accordance with the Tax Act and the relevant provincial Tax Laws and the Company and each Subsidiary satisfied at all times the relevant criteria and conditions entitling it to such ITCs. All refunds of ITCs received or receivable by the Company and each Subsidiary in any taxation year were claimed in accordance with the Tax Act and the relevant provincial Tax Laws and the Company and each Subsidiary has ever satisfied at all times the relevant criteria and conditions entitling it to claim a refund of such ITCs.
(ir) filed a consent under Section 341(f) There are no circumstances existing which could result in the application of sections 80 to 80.04 of the Code concerning collapsible corporations Tax Act to the Company or (ii) undergone an "ownership change" within any Subsidiary, including the meaning of Section 382(g) consummation of the Code, except as set forth transactions contemplated in Section 3.11(f) of the Disclosure Schedulethis Agreement.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Eleven Biotherapeutics, Inc.)
Tax Matters. (a) Each of the Company and each Company Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Company Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Company Subsidiary are required by law to withhold and collect have been duly withheld and collected collected, and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Company Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Company Subsidiary for the fiscal year years prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current past or deferred, accrued or unaccruedcurrent, fixed, contingent, absolute contingent or otherabsolute, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Company Subsidiary for which an adequate reserve has not been provided on such balance sheet. Neither the Company nor any Company Subsidiary is a "consenting corporation" within the meaning of Section 341(f) of the Code. Each of the Company and each Company Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Company Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Company Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof hereof, neither the Company nor any Company Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business business, consistent with prior practice, with respect to current operations or property presently owned.
(d) The information shown on the federal Federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOGAcquiror) is true, correct and complete in all material respects and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited examined by the IRS or applicable state Authority for through the taxable periods set forth in Section 3.11(d) of the Disclosure SchedulesSchedule, and neither the Company nor any Company Subsidiary has been notified in writing regarding any pending auditexamination, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Company Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Company Subsidiary is, and since the date of its incorporation has ever (i) filed not been, a consent under "United States real property holding corporation" as defined in Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) 897 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Iron Mountain Inc /De), Merger Agreement (Dauten Kent P)
Tax Matters. (a) Each Except as set forth in Company Disclosure Schedule 3.20(a), Company and each of its Subsidiaries has timely filed all material Tax Returns that it was required to file under applicable Laws, other than Tax Returns that are not yet due or for which a valid request for extension was filed consistent with requirements of applicable Laws. All such Tax Returns are true, correct and complete in all material respects and were prepared in substantial compliance with all applicable Laws. All Taxes due and owing by Company or any of its Subsidiaries (whether or not shown on any Tax Return) have been timely paid, other than any Taxes that have been reserved or accrued on the balance sheet of Company or which Company is contesting in good faith. Neither Company nor any Subsidiary is the beneficiary of any extension of time within which to file any Tax Return, and neither Company nor any of its Subsidiaries currently has any open tax years for which the applicable statute of limitations has been extended or suspended. No written claim has ever been made by an authority in a jurisdiction where Company or any Subsidiary does not file Tax Returns that it is or may be subject to taxation by, or required to file a Tax Return in, that jurisdiction. There are no Liens for Taxes (other than statutory liens for Taxes not yet due and payable, or Taxes that are being contested in good faith and for which adequate provision has been made on the balance sheet of Company) upon any of the assets of Company or any of its Subsidiaries.
(b) Except as set forth in Company Disclosure Schedule 3.20(b), Company and each of its Subsidiaries 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, or other third party.
(c) No foreign, federal, state, or local Tax audits or administrative or judicial Tax proceedings are being conducted or, to Company’s Knowledge, are pending or threatened with respect to Company or any Subsidiary. Other than with respect to audits that have already been completed and resolved, neither Company nor any Subsidiary has received from any foreign, federal, state, or local Taxing Authority (including in jurisdictions where Company or any Subsidiary has not filed Tax Returns) any (i) written notice indicating an intent to open an audit or other review, (ii) request for information related to Tax matters, or (iii) written notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted, or assessed by any Taxing Authority against Company or any Subsidiary.
(d) Company has made available to Buyer true and complete copies of the United States federal, state, local, and foreign income Tax Returns filed with respect to Company or any Subsidiary for taxable periods ended December 31, 2022, 2021 and 2020. Company has made available to Buyer correct and complete copies of all examination reports and statements of deficiencies assessed against or agreed to by Company or any Subsidiary filed for the years ended December 31, 2022, 2021 and 2020. Company and each Subsidiary has timely and properly taken such actions in accordance response to and in compliance with all Applicable Laws filed all Tax Returns which are required to be filed, notices Company or any Subsidiary has received from the IRS in respect of information reporting and has paid, or made adequate provision for the payment of, all Taxes which have or may become due backup and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary nonresident withholding as are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableLaw. Neither the Company nor any Subsidiary has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax liabilities assessment or deficiency and no request to waive or extend such a statute of the Company limitations or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision time period has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed filed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(ais currently pending.
(e) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except Except as set forth in Section 3.11(a) of the Company Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof Schedule 3.20(e), neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in a United States real property holding corporation within the meaning of Section 3.11(d897(c)(2) of the Disclosure Schedule.
(eCode during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. Company and each Subsidiary has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. Neither the Company nor any Subsidiary is a party to or bound by any tax Tax allocation or sharing agreement (other than an unwritten agreement with Company Bank and its Subsidiaries). Neither Company nor any Subsidiary (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), or arrangement(ii) has liability for the Taxes of any Person (other than Company or any Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, except local, or foreign Law), as set forth in Section 3.11(e) of the Disclosure Schedulea transferee or successor, by contract, or otherwise.
(f) Neither The unpaid Taxes of Company and each Subsidiary (i) did not, as of December 31, 2022, exceed the reserve for Tax liability (which reserve is distinct and different from any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the financial statements of Company as of December 31, 2022 (rather than in any notes to such financial statements), and (ii) do not exceed that reserve as adjusted for the passage of time through the Effective Time in accordance with the past practice of Company in filing its Tax Returns. Since December 31, 2022, neither Company nor any Subsidiary has ever incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP consistent with past practice and custom.
(g) Neither Company nor any Subsidiary shall be required to include any item of 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 any: (i) filed change in method of accounting for a consent taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 341(f1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received on or prior to the Closing Date.
(h) Neither Company nor any Subsidiary has distributed stock of another Person or had its stock distributed by another Person in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(i) Neither Company nor any Subsidiary is or has been a party to any “listed transaction,” as defined in Section 6707A(c)(2) of the Code concerning collapsible corporations and Treasury Regulations Section 1.6011-4(b)(2).
(j) Neither Company nor any Subsidiary has deferred the payment of any Tax or claimed or received any Tax refund or credit pursuant to the CARES Act, any similar statutory relief, or any other Tax legislation related to the COVID-19 pandemic or pursuant to any written agreement with a Taxing Authority that remains unpaid.
(iik) undergone an "ownership change" Company Disclosure Schedule 3.20(k) sets forth the entity classification of each Subsidiary of Company for U.S. federal income Tax purposes.
(l) To the Knowledge of Company, neither Company nor any Subsidiary has taken or agreed to take any action, has failed to take or agreed not to take any action or has Knowledge of any fact, agreement, plan, or other circumstance that could reasonably be expected to prevent or impede the Merger and the Holdco Merger, taken together, and the Bank Merger from qualifying as a “reorganization” within the meaning of Section 382(g368(a) of the Code.
(m) Company Disclosure Schedule 3.20(m) lists each Person who, except if the Effective Time were to occur as set forth in Section 3.11(f) of the date of this Agreement, to the Knowledge of the Company, would be classified as a “disqualified individual” of Company within the meaning of Section 280G of the Code (each, a “Disqualified Individual”). As of the date of this Agreement, Company has provided to Buyer on Company Disclosure ScheduleSchedule 3.20(m) certain historical and estimated data in connection with Buyer’s analysis as to whether any Disqualified Individual would reasonably be expected to receive a “parachute payment” within the meaning of Section 280G of the Code, and Company represents and warrants that such historical data is accurate and complete and such estimated data is Company’s good faith estimate as of the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Eastern Bankshares, Inc.), Merger Agreement (Cambridge Bancorp)
Tax Matters. Except as set forth on Section 5.1(n) of the Company Disclosure Schedules:
(ai) Each The Company and each of its Subsidiaries (A) have duly and timely filed (taking into account any extension of time within which to file) all material Tax Returns required to be filed by any of them as of the date hereof and all such filed Tax Returns are complete and accurate in all material respects; (B) have timely paid all Taxes that are shown as due on such filed Tax Returns and any other material Taxes that the Company or any of its Subsidiaries are otherwise obligated to pay, except with respect to Taxes that are being contested in good faith, and no material penalties or charges are due with respect to the late filing of any Tax Return required to be filed by or with respect to any of them on or before the Effective Time; (C) with respect to all material Tax Returns filed by or with respect to any of them, have not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency; (D) as of the date hereof, do not have any deficiency, audit, examination, investigation or other proceeding in respect of Taxes or Tax matters pending or proposed or threatened in writing; and (E) have provided adequate reserves in accordance with U.S. GAAP in the most recent consolidated financial statements of the Company and each Subsidiary has its Subsidiaries, as disclosed in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Reports, for any material Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has of its Subsidiaries that have not been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereofpaid, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or not shown as being due on any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleReturn.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(eii) Neither the Company nor any Subsidiary is a party to, is bound by or has an obligation under any Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar Contract or arrangement (including any agreement, Contract or arrangement providing for the sharing or ceding of credits or losses) or has a potential liability or obligation to any tax sharing agreement Person as a result of or arrangementpursuant to any such agreement, except as set forth in Section 3.11(e) of the Disclosure ScheduleContract, arrangement or commitment.
(fiii) None of the Company and its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date under Code Section 481(c) (or any corresponding or similar provision of state, local or foreign income Tax law); (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date; or (C) installment sale or intercompany transaction (as defined in Treasury regulations section 1502-13) made on or prior to the Closing Date.
(iv) Each of the Company and its Subsidiaries has withheld and paid to the appropriate Taxing authority all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any current or former employee, independent contractor, creditor, stockholder or other third party and has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes.
(v) Neither the Company nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or foreign income Tax Return (other than a group whose common parent is the Company).
(vi) Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than the Company and its Subsidiaries) under Treasury regulation section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(vii) Neither the Company nor any of its Subsidiaries has any request for a material ruling in respect of Taxes pending between the Company or any Subsidiary and any Tax authority.
(viii) The Company has ever (i) filed a consent under Section 341(f) made available to Parent true and correct copies of the Code concerning collapsible corporations U.S. federal income Tax Returns filed by the Company and its Subsidiaries for tax years 2000 through 2003.
(ix) There is no contract or (ii) undergone an "ownership change" within agreement, plan or arrangement by the meaning Company or its Subsidiaries covering any Person that, individually or collectively, would constitute compensation in excess of the deduction limitation set forth in Section 382(g162(m) of the Code, except as set forth described in Section 3.11(f) the Company Reports or as may arise as a result of the Disclosure ScheduleMerger.
(x) Neither the Company nor any of its Subsidiaries has in any year for which the applicable statute of limitations remains open distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(xi) The Company and its Subsidiaries are, and have at all times been, in compliance with the provisions of Sections 6011, 6111 and 6112 of the Code relating to tax shelter disclosure, registration and list maintenance and with the Treasury Regulations thereunder, and neither the Company nor any of the Subsidiaries has engaged in or entered into a “listed transaction” with the meaning of Treasury Regulation Sections 1.6011-4(b)(2), 301.6111-2(b)(2) or 301.6112-1(b)(2)(A). No IRS Form 8886 has been filed with respect to any Company or any Subsidiary.
(xii) Neither the Company nor any of its Subsidiaries or affiliates has taken or agreed to take any action, or is aware of any fact or circumstance, that would prevent the Merger and the Subsequent Merger, taken together, from qualifying as a reorganization within the meaning of Section 368 of the Code (a “368 Reorganization”).
(xiii) As used in this Agreement, (A) the term “Tax” (including, with correlative meaning, the term “Taxes,”) includes all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions, and (B) the term “Tax Return” includes all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns, as well as attachments thereto and amendments thereof) required to be supplied to a Tax authority relating to Taxes.
Appears in 2 contracts
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Ivax Corp)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable Except as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aSections 4.15(a)-(g) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group Letter:
(other than exclusively with a) the Company and its SubsidiariesSubsidiaries have timely filed all returns and reports relating to Taxes (including income taxes, withholding taxes and estimated taxes) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business be filed by applicable law with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns each of the Company and its Subsidiaries (trueor any of their income, properties or operations as of the date hereof. All such returns are complete and correct in all material respects. The Company and its Subsidiaries have paid all Taxes shown as due on such returns and all material taxes for which no return was required to be filed. The Company has made available to Parent and Purchaser complete and accurate copies of which have been furnished by the portions applicable to each of the Company and its Subsidiaries of all income and franchise Tax returns, and any amendments thereto, filed by or on behalf of the Company or any of its Subsidiaries or any member of a group of corporations including the Company or any of its Subsidiaries for the taxable years ending December 31, 1997, 1998 and 1999.
(b) The Company and its Subsidiaries have made adequate provisions in accordance with United States generally accepted accounting principles appropriately and consistently applied to VIALOGeach of the Company and its Subsidiaries in the consolidated financial statements included in the SEC Reports for the payment of all Taxes for which each of the Company and its Subsidiaries may be liable for the periods covered thereby that were not yet due and payable as of the dates thereof, regardless of whether the liability for such Taxes is disputed.
(c) is trueAll federal, correct state, local and complete and fairly and accurately reflects the information purported to be shown. Federal and state income foreign Tax Returns returns of the Company and its Subsidiaries have been audited by and settled, or are closed to assessment, for all years through 1997. There is no claim, action, suit, proceeding or assessment pending, or, to the IRS best of the Company's or applicable state Authority any of its Subsidiaries' knowledge, threatened against the Company or any of its Subsidiaries for any alleged deficiency in Taxes, and none of the Company or any of its Subsidiaries knows of any audit or investigation with respect to any liability of the Company or any of its Subsidiaries for Taxes. There are no agreements in effect to extend the period of limitations for the taxable assessment or collection of any Tax for which the Company or any of its Subsidiaries may be liable.
(d) The Company and each of its Subsidiaries have withheld from their employees (and timely paid to the appropriate Governmental Entity) proper and accurate amounts for all periods set forth through the date hereof in Section 3.11(dcompliance with all Tax withholding provisions of applicable federal, state, local and foreign laws (including, without limitation, income, social security, and employment tax withholding for all types of compensation).
(e) The Company and each of its Subsidiaries have withheld (and timely paid to the appropriate Governmental Entity) proper and accurate amounts for all periods through the date hereof in compliance with all Tax withholding provisions of applicable federal, state, local and foreign laws other than provisions of employee withholding (including, without limitation, withholding of Tax on dividends, interest, and royalties and similar income earned by nonresident aliens and foreign corporations and withholding of Tax on United States real property interests).
(f) There is no contract, agreement or intercompany account system in existence under which the Company or any of its Subsidiaries has, or may at any time in the future have, an obligation to contribute to the payment of any portion of a Tax (or pay any amount calculated with reference to any portion of a Tax) of any group of corporations of which the Disclosure Schedules, and Company or any of its Subsidiaries is or was a part.
(g) No claim has ever been made by any authority in a jurisdiction where neither the Company nor any Subsidiary has been notified regarding of its Subsidiaries filed Tax returns that the Company or any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleits Subsidiaries is or may be subject to taxation by that jurisdiction.
(eh) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary its Subsidiaries has ever (i) filed given a consent under Section 341(f) of the Code concerning collapsible corporations Code.
(i) Neither the Company nor any of its Subsidiaries is, or (ii) undergone an has been at any time, a "ownership changeUnited States real property holding corporation," within the meaning of Section 382(g897(c)(2) of the Code.
(j) Neither the Company nor any of its Subsidiaries is a party to any agreement, except as set forth contract or arrangement that may result, separately or in the aggregate, in the payment of any "excess parachute payment" with the meaning of Section 3.11(f280G of the Code by reason of the consummation of the Offer or the Merger, determined without regard to Section 280G(b)(4) of the Disclosure ScheduleCode.
Appears in 2 contracts
Samples: Merger Agreement (Crowley Maritime Corp), Merger Agreement (Marine Transport Corp)
Tax Matters. (a) Each of the Company Check-Cap and each its Subsidiary has in accordance with all Applicable Laws timely filed all income Tax Returns which are and other material Tax Returns that they were required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to datefile under applicable Law. The All such Tax Returns of the Company are true, correct and each Subsidiary complete and accurate in all material respects and have been prepared in material compliance with all applicable Laws. No claim has ever been made by a Governmental Authority in a jurisdiction where Check-Cap or its Subsidiary does not file Tax Returns that Check-Cap or its Subsidiary is subject to taxation by that jurisdiction.
(b) All material Taxes due and owing by Check-Cap and its Subsidiary (whether or not shown on any Tax Return) have been timely paid and appropriately reserved on their balance sheet for all Taxes that are not yet due and payable (whether or not shown on any Tax Return). Since the date of the Check-Cap Unaudited Interim Balance Sheet, neither Check-Cap nor its Subsidiary have incurred any material Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice. In addition, Check-Cap and its Subsidiary are in compliance with, and their records contain all information and documents necessary in all material respects to comply with (including all documents and records likely to be needed to defend any challenge by any Governmental Authority to the transfer pricing of any transactions conducted by Check-Cap and its Subsidiary), all applicable information reporting and withholding requirements under all applicable Laws and Check-Cap and its Subsidiary have maintained, and still maintain, all required records with respect thereto.
(c) Each of Check-Cap and its Subsidiary have withheld or collected and timely paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party under any applicable Laws.
(d) There are no Encumbrances for material Taxes (other than Taxes not yet due and payable or for Taxes that are being contested in good faith, in each case, for which adequate reserves have been established in accordance with all Applicable Laws and generally accepted principles applicable GAAP) upon any of the assets of Check-Cap or its Subsidiary.
(e) No deficiencies for material Taxes with respect to taxation consistently applied. All Taxes which the Company and each Check-Cap or its Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overclaimed, proposed or assessed by any Governmental Authority in a timely mannerwriting. There are no pending (or, based on written notice, threatened) material audits, assessments, disputes or other actions for or relating to the proper Authorities to the extent due and payableany liability in respect of Taxes of Check-Cap or its Subsidiary. Neither the Company Check-Cap nor its Subsidiary (or any Subsidiary of their predecessors) has executed waived any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a material Tax liabilities assessment or deficiency and neither Check-Cap nor its Subsidiary have received any written request from a Governmental Authority to waive or extend any statute of limitations in respect of Taxes.
(f) Neither Check-Cap nor its Subsidiary has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Company Code in the last five years, or is a real property corporation (Igud Mekarke’in) within the meaning of this term under Section 1 of the Israeli Land Taxation Law (Appreciation and Acquisition), 5723-1963 at any time since their incorporation.
(g) Each of Check-Cap and its Subsidiary is duly registered for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part purposes of the Financial Statements for all Taxes of any kindVAT, including interest and penalties in respect thereof, whether disputed or notif such registration is required by Law, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and has complied in all material respects with all requirements concerning VAT including with respect to the knowledge timely filing of complete and correct VAT returns. Check-Cap and its Subsidiary (i) have not made any material exempt transactions (as defined in the Company Israel Value Added Tax Law of 1975) and there are no circumstances by reason of which they might not be entitled to full credit of all VAT chargeable or paid on inputs, supplies, and other transactions and imports made by it, (ii) have collected and timely remitted in all material aspects to the relevant Tax authority all output VAT which it is required to collect and remit under any applicable Laws, and (iii) have not received a material refund for input VAT for which it is not entitled under any applicable Laws.
(h) Other than as expressly disclosed in the Check-Cap SEC Documents filed prior to the date hereof, each of Check-Cap and its Subsidiary has never made any election to be treated or matters claimed any benefits as a “Beneficial Enterprise” (Mifaal Mutav) or “Approved Enterprise” (Mifaal Meushar) or otherwise nor did it take any basis which might position of being a “Preferred Enterprise” (Mifaal Muadaf) or could result in additional Taxes “Preferred Technological Enterprise” or otherwise under the Law for Encouragement of Capital Investments, 1959, and there are no royalties, fees, repayments or other amounts due or payable by Check-Cap and its Subsidiary to any Governmental Authority with respect to any of the foregoing. No prior approval of any nature Governmental Authority related to Tax is required in order to consummate the Transactions, or to preserve entitlement of Check-Cap and its Subsidiary to any such incentive subsidy or benefit.
(i) Neither Check-Cap nor its Subsidiary owns any material interest in any controlled foreign corporation pursuant to Section 75B of the Israeli Income Tax Ordinance, or other entity the income of which is required to be included in the income of Check-Cap or its Subsidiary.
(j) Neither Check-Cap nor its Subsidiary is subject to any restrictions or limitations pursuant to Part E2 of the Israeli Income Tax Ordinance or pursuant to any Tax ruling made with reference to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each provisions of Part E2 of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the CodeIsraeli Income Tax Ordinance, except as otherwise set forth a result of any Tax ruling that has been obtained in connection with the transactions contemplated by this Agreement.
(k) Each of Check-Cap and its Subsidiary is and has been in compliance in all material respects with all applicable transfer pricing Laws, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practice and methodology.
(l) Neither Check-Cap nor its Subsidiary is a party to any Tax allocation, Tax sharing or similar agreement (including indemnity arrangements), other than customary indemnification provisions in commercial contracts entered into in the Ordinary Course of Business with vendors, customers, lenders, or landlords.
(m) Neither Check-Cap nor its Subsidiary has entered into a cost sharing arrangement to share research and development costs and rights to any developed Intellectual Property. No non-Israeli subsidiary of Check-Cap owns any Intellectual Property, including any economic or commercialization rights to Intellectual Property.
(n) Check-Cap and its Subsidiary have made available to Keystone complete copies of (i) all material Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by Check-Cap for all taxable periods for which the applicable statute of limitation has not yet expired (ii) any audit report issued with respect to or relating to any Taxes due from or with respect to Check-Cap and its Subsidiary, (iii) any closing or settlement agreements entered into by or with respect to Check-Cap and its Subsidiary, with any Governmental Authority, (iv) all Tax opinions, memoranda and similar documents addressing Tax matters or Tax positions of Check-Cap and its Subsidiary, and (v) all material written communications to, or received by Check-Cap and its Subsidiary from any Governmental Authority including Tax rulings and Tax decisions.
(o) Check-Cap and its Subsidiary do not and have never participated or engaged in any transaction listed in Section 3.11(a131(g) of the Disclosure Schedule. Israeli Income Tax Ordinance and the Israeli Income Tax Laws (Reportable Tax Planning), 5767-2006 promulgated thereunder nor are they subject to reporting obligations under Sections 131D or 131E of the Israeli Income Tax Ordinance or similar provisions under the Israel Value Added Tax law of 1975 and have never obtained a legal or tax opinion that is subject to reporting under Section 131D of the Israeli Income Tax Ordinance or similar provisions under the Israel Value Added Tax Law of 1975.
(p) Check-Cap and its Subsidiary use the accrual method of accounting for income tax purposes.
(q) Neither the Company Check-Cap nor any its Subsidiary has ever been a member of any an affiliated group filing a consolidated group U.S. federal income Tax Return (other than exclusively with a group the Company and common parent of which is Check-Cap). Neither Check-Cap nor its SubsidiariesSubsidiary have any material Liability for the Taxes of any Person (other than Check-Cap or its Subsidiary) for Tax purposesunder Treasury Regulations Section 1.1502-6 (or any similar provision of state, except local, or foreign Law) or as set forth in Section 3.11(a) of the Disclosure Schedulea transferee or successor.
(br) Each Neither Check-Cap nor its Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to Code or Section 361 of the extent required to avoid material underpayment penalties) of estimated Taxes due and payableCode.
(cs) From the end of Neither Check-Cap nor its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made entered into any payment on account transaction identified as a “listed transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2).
(t) No statute of limitations in respect of the assessment or collection of any Taxes except regular payments of Check-Cap or its Subsidiary has been waived or extended, which waiver or extension is in effect and Check-Cap or its Subsidiary is not presently contesting the Tax liability before any Governmental Authority.
(u) There is no outstanding power of attorney from Check-Cap or its Subsidiary authorizing anyone to act on behalf of Check-Cap or its Subsidiary in connection with any Tax, Tax Return or action relating to any Tax or Tax Return of Check-Cap.
(v) Neither Check-Cap nor its Subsidiary will be required to include any item of income or exclude any item of deduction for any taxable period (or a portion thereof) ending after the Closing Date as a result of any of the following that occurred or existed on or prior to the Closing Date: (i) a “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), (ii) an installment sale or open transaction, (iii) a prepaid amount, (iv) an intercompany item under United States Treasury regulations Section 1.1502-13 or an excess loss account under United States Treasury regulations Section 1.1502-19, (v) a change in the ordinary course accounting method of business Check-Cap pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding tax Laws of any nation, state or locality or the use of a method of accounting with respect to current operations any transaction that occurred on or property presently owned.
before the Closing Date; or (dvi) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent inclusion under Section 341(f951(a) or Section 951A of the Code concerning collapsible corporations or attributable to (iiA) undergone an "ownership change" “subpart F income,” within the meaning of Section 382(g) 952 of the Code, except (B) direct or indirect holding of “United States property,” within the meaning of Section 956 of the Code, (C) “global intangible low-taxed income,” as set forth defined in Section 3.11(f951A of the Code, in each case, determined as if the relevant taxable years ended on the Closing Date or (D) any inclusion under Section 965 of the Code.
(w) Check-Cap and its Subsidiary have not made an election to defer any Taxes under Section 2302 of the CARES Act or IRS Notice 2020-65, or any similar election under state or local Law. Check-Cap has properly complied with all applicable Laws and duly accounted for any available Tax credits under Sections 7001 through 7005 of the Families First Coronavirus Response Act for 2020 (or any similar election under state, local or non-U.S. Law) and Section 2301 of the CARES Act (or any similar election under state, local or non-U.S. Law).
(x) To the Knowledge of Check-Cap, there are no facts or circumstances that could reasonably be expected to prevent the Mergers from qualifying for the Intended U.S. Tax Treatment.
(y) Each Check-Cap Stock Plan is intended to qualify as a capital gains route plan under Section 102(b)(2) or 102(b)(3) of the Disclosure ScheduleIsraeli Income Tax Ordinance and has received a favorable determination or approval letter from, or is otherwise approved by, or deemed approved by passage of time without objection by, the ITA. All Section 102 Awards which were issued under the Check-Cap Stock Plans were and are currently in compliance with the requirements of Section 102, any regulation promulgated thereunder, and the written requirements and guidance of the ITA, including without limitation, the filing of the necessary documents with the ITA, the appointment of an authorized trustee to hold the Section 102 Awards, and the due deposit of such Section 102 Awards with such trustee pursuant to the terms of Section 102 of the Israeli Income Tax Ordinance, and applicable regulations and rules and the guidance published by the ITA on July 24, 2012 and clarification dated November 6, 2012, as applicable.
(z) To the Knowledge of Check-Cap, no Check-Cap Shareholder (i) has any current plan or intention to dispose of or otherwise transfer the shares of PubCo Common Stock following Closing or (ii) is currently under any binding agreement to dispose of or otherwise transfer the shares of PubCo Common Stock following Closing.
Appears in 2 contracts
Samples: Business Combination Agreement (Check-Cap LTD), Business Combination Agreement (Check-Cap LTD)
Tax Matters. (ai) Each of the Company Seller, its Affiliates and each Subsidiary the Subject Entities has in accordance with all Applicable Laws duly filed or caused to be filed all material Tax Returns which are (or appropriate extensions) required to be filedfiled by or with respect to the Business Assets or such Subject Entities, and has as applicable, with the Internal Revenue Service or other applicable taxing authority, all material Taxes (as determined on an aggregate basis) due or claimed due by a taxing authority from or with respect to the Business Assets or each applicable Subject Entity or its assets or operations have been paid, or adequately reserved against, and each of the Seller, its Affiliates and the Subject Entities has made adequate provision all material deposits required of the Subject Entities and with respect to such Taxes.
(ii) Except as described in Schedule 4(j), no deficiency or adjustment for any amount of Tax has been proposed, asserted, or assessed by the payment of, all Taxes which have Internal Revenue Service or may become due and payable pursuant to said Returns and all any other governmental charges and assessments received to date. The taxing authority in connection with any Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, relating to the proper Authorities to Business Assets or the extent due Subject Entities, and payable. Neither the Company nor no waiver or extension of any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in as to any federal, state, local or foreign tax matter relating to the Business Assets or the Subject Entities has been given by or requested from the Seller, its Affiliates or the Subject Entities with respect of to any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(biii) Except as described in Schedule 4(j), none of the Seller or the Subject Entities is currently the beneficiary of any extension of time within which to file any Tax Return of the Subject Entities or with respect to the Business Assets.
(iv) Each of the Company Seller, its Affiliates and each Subsidiary the Subject Entities, as applicable, has withheld and paid all material Taxes which have become due pursuant to its Returns and has paid all installments (to the extent as determined on an aggregate basis) required to avoid have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, shareholder, partner, member or creditor of the Business or the Subject Entities, as applicable, or other third party, and all forms (including forms W-2 and 1099) required by applicable Law with respect thereto have been properly completed and timely filed in all material underpayment penalties) of estimated Taxes due and payablerespects.
(cv) From Except as described in Schedule 4(j), each of the end of Subject Entities is, and has been since formation, classified for U.S. federal income tax purposes either (A) as a partnership or (B) as disregarded from its most recent fiscal year to the date hereof neither the Company nor sole owner. Further, any Subsidiary Subject Entity classified as a partnership for U.S. federal income tax purposes has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect a valid election pursuant to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) 754 of the Code, except and such election is in effect.
(vi) Except as set forth described in Section 3.11(f) Schedule 4(j), none of the Disclosure ScheduleSubject Entities is a member of a combined unitary, affiliated or other similar group for tax purposes.
(vii) None of the Subject Entities has any liability for Taxes of any person (other than such Subject Entity, as applicable) under Treasury Regulation § 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: Purchase and Sale Agreement (Genesis Energy Lp), Purchase and Sale Agreement
Tax Matters. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) The Company and the Company Subsidiaries have timely filed (taking into account any extension of time within which to file) all Tax Returns that are required to be filed by or with respect to any of them (the “Company Returns”) and all such Company Returns are true, correct and complete.
(ii) The Company and the Company Subsidiaries have timely paid in full to the appropriate Governmental Entity all Taxes required to be paid by any of them, and the financial statements of the Company and the Company Subsidiaries reflect full and adequate reserves, in accordance with GAAP, for all Taxes accrued but not yet paid by the Company or any Company Subsidiary.
(iii) Each of the Company and each Subsidiary the Company Subsidiaries has in accordance with (i) timely paid, deducted, withheld and collected all Applicable Laws filed all Tax Returns which are amounts required to be filed, and has paid, deducted, withheld or collected by any of them with respect to any payment owing to, or received from, their employees, creditors, independent contractors, customers and other third parties (and have timely paid over any amounts so withheld, deducted or collected to the appropriate Governmental Entity) and (ii) otherwise complied with all applicable Legal Requirements relating to the withholding, collection and remittance of Taxes (including information reporting requirements).
(iv) Within the last six (6) years, no claim has been made adequate provision for in writing by any Tax authority in a jurisdiction where the payment of, all Taxes which have Company or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The any Company Subsidiary has not filed Tax Returns of a particular type that the Company and each or any Company Subsidiary have been prepared in accordance is or may be subject to Tax by, or required to file Tax Returns with all Applicable Laws and generally accepted principles applicable respect to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overin, in a timely manner, to the proper Authorities to the extent due and payable. such jurisdiction.
(v) Neither the Company nor any Company Subsidiary has executed will be required to include an item of income (or exclude an item of deduction) in any waiver taxable period (or portion thereof) beginning after the Closing Date as a result of (i) a change in or incorrect method of accounting occurring prior to extendthe Closing Date, (ii) a prepaid amount received (or deferred revenue recognized) or paid, prior to the Closing Date or (iii) an election under Section 108(i) of the Code (or any similar state, local or non-U.S. Legal Requirement).
(b) There are no: (i) examinations, investigations, audits, or otherwise taken other proceedings pending or failed threatened in writing with respect to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities material Taxes of the Company or any Company Subsidiary or any material Company Returns; (ii) extensions or waivers of the limitation period applicable to any material Company Return or the period for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes assessment of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge material Taxes of the Company there are no transactions or matters the Company Subsidiaries; (iii) deficiencies for material Taxes that have been claimed, proposed or assessed by any basis which might or could result in additional Taxes of any nature to Governmental Entity against the Company or any Company Subsidiary for which an adequate reserve has that have not been provided fully satisfied by payment; or (iv) Liens in respect of or on such balance sheet. Each account of material Taxes (other than Company Permitted Encumbrances) upon any of the property or assets of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aor any Company Subsidiary.
(c) of the Disclosure Schedule. Neither the Company nor any Subsidiary of the Company Subsidiaries (i) is or has ever been been, within the last ten (10) years, a member of any consolidated affiliated, combined, consolidated, unitary or similar group for purposes of filing Tax Returns or paying Taxes, except for any such group of which the Company is the common parent or (ii) has any liability for Taxes of any Person (other than exclusively with the Company and its Subsidiariesor any Company Subsidiary) for Tax purposesunder Treasury Regulations Section 1.1502-6 (or any similar state, except local or non-U.S. Legal Requirement) or as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations a transferee or property presently ownedsuccessor.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither Neither the Company nor any Company Subsidiary is a party to or bound by, or has been notified regarding any pending auditobligation under, except as shown any Tax indemnity, sharing, allocation, or reimbursement agreement or arrangement, other than: (i) customary tax provisions in Section 3.11(dordinary course commercial agreements, the principal purpose of which is not related to Taxes; and (ii) of any agreement or arrangement solely between or among the Disclosure ScheduleCompany and/or the Company Subsidiaries.
(e) Neither the Company nor any Company Subsidiary is a party bound with respect to the current or any tax sharing future taxable period by any closing agreement or arrangement, except as set forth in (within the meaning of Section 3.11(e7121(a) of the Disclosure ScheduleCode or any similar or analogous state, local or non-U.S. Legal Requirement) or other ruling or written agreement with a Tax authority, in each case, with respect to material Taxes.
(f) Part 2.15(f) of the Company Disclosure Schedule sets forth the Company’s expected future payments due to its election pursuant to Section 965(h) of the Code.
(g) Within the last two (2) years, neither the Company nor any Company Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355(a) of the Code.
(h) Neither the Company nor any Company Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" participated in any “listed transaction” within the meaning of Treasury Regulations Section 382(g1.6011-4(b)(2) of (or any similar state, local or non-U.S. Legal Requirement).
(i) Neither the Code, except as set forth in Section 3.11(f) of Company nor any Company Subsidiary has taken or agreed to take any action or believes or has any reason to believe that any conditions exist that could prevent or impede the Disclosure ScheduleMerger from qualifying for the Intended Tax Treatment.
Appears in 2 contracts
Samples: Merger Agreement (Xilinx Inc), Merger Agreement (Advanced Micro Devices Inc)
Tax Matters. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect:
(a) Each The Company and its Subsidiaries (i) have duly and timely filed (taking into account any extension of time within which to file) all Tax Returns required to have been filed by or with respect to the Company or any of its Subsidiaries, and all such Tax Returns are true, correct and complete, (ii) have duly and timely paid all Taxes due and payable (whether or not shown on such Tax Returns), (iii) have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, and (iv) have not received written notice of any deficiencies for any Tax from any taxing authority against the Company or any of its Subsidiaries, except, in each case, with respect to matters contested in good faith or for which adequate reserves, in accordance with GAAP, are reflected in the Company SEC Documents. The Company and its Subsidiaries have adequate reserves, in accordance with GAAP, on the financial statements included in the Company SEC Documents for Taxes payable by the Company and its Subsidiaries for all taxable periods and portions thereof through the date of the most recent quarterly or annual report included in the Company SEC Documents. Since the date of the most recent quarterly or annual report included in the Company SEC Documents, neither the Company nor any of its Subsidiaries have incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice.
(b) Neither the Company nor any of its Subsidiaries is the subject of any currently ongoing tax audit or other proceeding with respect to Taxes nor has any Tax audit or other proceeding with respect to Taxes been proposed against any of them in writing. As of the date of this Agreement, there are no pending requests for waivers of the time to assess any Tax. There are no currently effective waivers of any statute of limitations in respect of Taxes or extensions of time with respect to a Tax assessment or deficiency of the Company and each Subsidiary has or any of its Subsidiaries. There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries, other than any Lien for Taxes not yet delinquent, being contested in good faith or for which adequate accruals or reserves have been established, in accordance with all Applicable Laws GAAP, in the Company SEC Documents. No claim has been made in writing in the past three years by a taxing authority of a jurisdiction where the Company or one of its Subsidiaries has not filed all Tax Returns which are required to be filed, and has paid, claiming that the Company or made adequate provision for the payment of, all Taxes which have such Subsidiary is or may become due and payable pursuant be subject to said Returns and all taxation by that jurisdiction.
(c) Neither the Company nor any of its Subsidiaries is obligated by any written contract or agreement to indemnify any other governmental charges and assessments received to date. The Tax Returns of person (other than the Company and each Subsidiary have been prepared its Subsidiaries) with respect to Taxes (excluding customary Tax indemnification provisions in accordance with all Applicable Laws and generally accepted principles applicable commercial Contracts not primarily relating to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableTaxes). Neither the Company nor any Subsidiary has executed of its Subsidiaries is a party to or bound by any waiver to extendwritten Tax allocation, indemnification or otherwise taken sharing agreement (other than an agreement solely between or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of among the Company or any Subsidiary for the fiscal year prior and/or its Subsidiaries and excluding customary Tax indemnification provisions in commercial Contracts not primarily relating to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure ScheduleTaxes). Neither the Company nor any Subsidiary has ever been a member of its Subsidiaries is liable under Treasury Regulation Section 1.1502-6 (or any similar provision of the Tax Laws of any consolidated group (state, local or foreign jurisdiction) or as a transferee or successor for any Tax of any person other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(bd) Each Other than the distribution by the Company of shares of SunCoke Energy, Inc. to the Company’s shareholders on January 17, 2012 in a transaction intended to qualify under Sections 368(a)(1)(D) and 355 of the Company Code, and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof any transactions taken in connection therewith, neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required its Subsidiaries was a “distributing corporation” or a “controlled corporation” in the ordinary course of business with respect a transaction intended to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns qualify under Section 355 of the Company and its Subsidiaries Code within the past two (true, correct and complete copies of which have been furnished by the Company to VIALOG2) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleyears.
(e) Neither the Company nor any Subsidiary is a party to of its Subsidiaries has participated in any tax sharing agreement or arrangement, except as set forth in “listed transaction” within the meaning of Treasury Regulation Section 3.11(e) of the Disclosure Schedule1.6011-4(b)(2).
(f) Neither The factual representations provided by the Company nor any Subsidiary has ever in the letter dated as of the date of this Agreement are true and correct in all material respects.
(g) SXL has, at all times since its formation, been classified for U.S. federal income tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation.
(h) As used in this Agreement, (i) filed a consent under Section 341(f“Taxes” means any and all domestic or foreign, federal, state, local or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including taxes on or with respect to income, franchises, windfall or other profits, gross receipts, occupation, property, transfer, sales, use, capital stock, severance, alternative minimum, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of excise, withholding, ad valorem or value added or other taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the Code concerning collapsible corporations same or a similar nature to any of the foregoing, and (ii) undergone an "ownership change" within “Tax Return” means any return, report or similar filing (including the meaning attached schedules) with respect to Taxes, including any information return, claim for refund, amended return or declaration of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Scheduleestimated Taxes.
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Partners, L.P.), Merger Agreement (Sunoco Inc)
Tax Matters. Except as set forth on Section 3.18 of the Debtor Disclosure Schedule:
(a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all All material Tax Returns required to be filed by or on behalf of any Debtor, including any consolidated, combined or unitary Tax Return of which any Debtor is or was includable, have been properly prepared in all material respects and duly and timely filed with the appropriate Taxing Authorities in all jurisdictions in which such Tax Returns are required to be filedfiled (after giving effect to any valid extensions of time in which to make such filings). All material Taxes payable by or on behalf of any Debtor directly, as part of the consolidated, combined or unitary Tax Return of another taxpayer, or otherwise, have been fully and timely paid, and has paidadequate reserves or accruals for Taxes have been provided in the Audited Balance Sheet or, in the case of tax periods that begin following the date of the Audited Balance Sheet, the accounting books and records of the Debtors in respect of any period for which Tax Returns have not yet been filed or made adequate provision for the payment of, all which Taxes which have or may become are not yet due and payable pursuant to said Returns and all owing. No agreement, waiver or other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, document or otherwise taken arrangement extending or failed to take any action that would have having the effect of extending, extending the period for assessment or collection of a material amount of Taxes (including any applicable statute of limitations limitations) has been executed or filed with the IRS or any other Governmental Body by or on behalf of any Debtor (or any consolidated, combined or unitary group of which any Debtor was or is includable for Tax purposes) and no power of attorney in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties matter is currently in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduleforce.
(b) Each Debtor has complied in all material respects with all applicable Laws relating to the payment and withholding of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has duly and timely withheld from employee salaries, wages, and other compensation and have paid all installments (over to the extent appropriate Taxing Authorities or other applicable Governmental Bodies all amounts required to avoid material underpayment penalties) of estimated Taxes due be so withheld and payablepaid over for all periods under all applicable Laws.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has All material deficiencies asserted or assessments made any payment on account as a result of any examinations by any Taxing Authority or any other Governmental Body of the Tax Returns of or covering or including any Debtor have been fully paid, and there are no other material audits, investigations or other Proceedings by any Taxing Authority or any other Governmental Body in progress, nor has any Debtor received notice from any Taxing Authority or other applicable Governmental Body that it intends to conduct or commence such an audit, investigation or other Proceeding. No material issue has been raised by any Taxing Authority or other applicable Governmental Body in any current or prior examination that, by application of the same or similar principles, could reasonably be expected to result in a proposed material deficiency for any subsequent taxable period. There are no material Encumbrances for Taxes except regular payments required in the ordinary course of business with respect to current operations any Debtor, or property presently ownedwith respect to the assets or business of any Debtor, nor is there any such Encumbrance that is pending or threatened, other than Permitted Encumbrances.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Backstop Purchase Agreement (Chaparral Energy, Inc.), Restructuring Support Agreement (Chaparral Energy, Inc.)
Tax Matters. (a) Each of the Except as set forth on Schedule 3.06, All Tax Returns required to be filed with respect to Company and each Subsidiary has its Subsidiaries for all Taxable Periods ending prior to the date hereof have been duly and timely (within any applicable extension periods) filed with the appropriate Governmental Entities in accordance with all Applicable Laws filed all jurisdictions in which such Tax Returns which are required to be filed, all such Tax Returns are true, correct and has complete, and all Taxes (whether or not shown to be due and payable on such Returns) required to be paid have been paid, or made adequate provision . Company and its Subsidiaries have set up reserves for the payment ofof all material Taxes not yet due and payable, and any penalties or fines related to all Taxes Tax Returns, that adequately cover all Taxable Periods ending prior to the date hereof, except that Company has not established a reserve for taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of if in the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary future funds are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the repatriated from foreign subsidiaries.
(b) Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company duly withheld and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent that it is required to avoid material underpayment penalties) of estimated Taxes due withhold and payablepay in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(c) From Except as set forth on Schedule 3.06(c), none of the end Tax Returns of Company and its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business Subsidiaries filed with respect to current operations Tax years beginning on or property presently ownedafter March 31, 2005 or, to the Knowledge of Company, any prior Tax year, has been or is currently being examined by the IRS or relevant state, local or foreign taxing Authorities or Governmental Entities. Except as set forth on Schedule 3.06(c), there are no examinations or other administrative or court proceedings relating to Taxes or Tax Returns in progress or pending with respect to which Company or any of its Subsidiaries has received written notice.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except Except as set forth in Section 3.11(e) on Schedule 3.06(d), no payment made or to be made to any current or former employee or director of Company or any of its Subsidiaries as a result of the Disclosure Schedule.
Transactions contemplated by this Agreement (feither alone or in conjunction with any other events such as a termination of employment) Neither the Company nor and no trustee under any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations rabbi trust "or (ii) undergone similar arrangement in connection with any Employee Benefit Plan will constitute an "ownership changeexcess parachute payment" within the meaning of Section 382(g280G of the Code or will be nondeductible under Section 162(m) of the Code.
(e) There are no Liens for Taxes, except as set forth other than for current Taxes not yet due and payable, on the assets of Company or any of its Subsidiaries.
(f) During the five year period ending on the date hereof, neither Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 3.11(f) 355 of the Disclosure ScheduleCode.
Appears in 2 contracts
Samples: Merger Agreement (Cpac Inc), Merger Agreement (Cpac Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vialog Corp), Asset Purchase Agreement (Call Points Inc)
Tax Matters. Except as set forth on Schedule 3.17 or in the case of any matters that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all material Tax Returns which that are required to be filedfiled by or with respect to the Companies, and has paid, the AEC Subsidiary or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns any assets of the Company and each Companies or the AEC Subsidiary have been prepared timely filed (taking into account all applicable extension periods). There is not presently in accordance force any extension of time with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, respect to the proper Authorities to the extent due and payable. Neither the Company nor date for filing of any Subsidiary has executed material Tax Return or any waiver to extend, or otherwise taken agreement for any extension of time for the assessment or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect payment of any Tax liabilities of material Tax. The Companies and the Company or any AEC Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes have received no written notice of any kind, including interest and penalties in respect thereof, whether disputed kind of any alleged deficiency or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or required adjustment that could result in additional Taxes of any nature to the Company or any Subsidiary material tax for which an adequate reserve has not been provided on such balance sheet. Each any of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.them is or may be liable;
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.payable by or with respect to the Companies, the AEC Subsidiary or any assets of the Companies or the AEC Subsidiary have been paid in full, except for amounts that are being contested in good faith and for which reserves have been established in accordance with GAAP;
(c) From there are no Liens for Taxes upon the end assets of its most recent fiscal year to the date hereof neither Companies or the Company nor any AEC Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.for Permitted Liens;
(d) The information shown on there is no current or pending, or to Seller’s Knowledge, threatened audit or other administrative or judicial proceeding relating to any material Tax Return filed with respect to the federal income Tax Returns Business Operations or any of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns assets of the Company and its Subsidiaries have been audited by Companies or the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.AEC Subsidiary;
(e) Neither none of the Company nor Companies or the AEC Subsidiary has waived any Subsidiary is a party statutes of limitations with respect to Taxes or agreed to any tax sharing agreement extension of time with respect to any Tax assessment or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.deficiency with respect to any currently open Tax period; and
(f) Neither the Company nor any Companies and the AEC Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedulehave complied with all withholding Tax requirements.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Emerge Energy Services LP), Purchase and Sale Agreement (Emerge Energy Services LP)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except Except as set forth in Section 3.11(a) 3.9 of the Disclosure ScheduleLetter:
(a) All sales and use and employment-related Tax Returns required to be filed by or with respect to the Business and the Transferred Assets, and all Tax Returns required to be filed by or with respect to the Hong Kong Foreign Subsidiary have been timely filed (taking into account all validly-obtained extensions). All such Tax Returns are true, correct, and complete in all material respects and all material Taxes due and owing (whether or not shown on such Tax Returns) have been paid. Solely with respect to Business and the Transferred Assets, the Seller Companies have complied with all material Legal Requirements relating to the withholding of sales and use and employment-related Taxes and have withheld and paid on a timely basis all such material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, company clinician, independent contractor, creditor, stockholder, or other third party. No Seller Company has received any notice that any Taxing Authority has threatened that it is in the process of imposing any Lien for such Taxes (other than a Permitted Lien) on the Transferred Assets or assets of any Foreign Subsidiary for the failure to pay any Taxes. No material deficiencies or assessments for such Taxes have been or are being asserted, or to Sellers’ Knowledge, proposed or threatened.
(b) Each No material Proceedings before any Taxing Authority are currently pending with regard to any sales and use or employment-related Taxes or Tax Returns with regard to the Business or the Transferred Assets, or with regard to the Taxes of the Hong Kong Foreign Subsidiary). No Seller Company and each Subsidiary has paid all Taxes which have become due pursuant received any written notice (or to its Returns and has paid all installments (to the extent required to avoid material underpayment penaltiesSellers’ Knowledge, any threat) of estimated Taxes due and payableany such audits or Proceedings as described in this Section 3.9(b).
(c) From No written claims (or, to Sellers’ Knowledge, oral claims) have ever been made by a Taxing Authority in a jurisdiction in which the end of its most recent fiscal year Hong Kong Foreign Subsidiary does not file Tax Returns that the Hong Kong Subsidiary is or may be subject to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently ownedtaxation by that jurisdiction.
(d) The information shown There are not now any extensions of time in effect with respect to the dates on the federal income which any Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported Hong Kong Foreign Subsidiary were or are due to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulefiled.
(e) Neither the Company nor There are no outstanding or requested waivers of any Subsidiary is a party to any tax sharing agreement statutes of limitations or arrangement, except as set forth in Section 3.11(e) agreements by or on behalf of the Disclosure ScheduleHong Kong Foreign Subsidiary for the extension of time for the assessment of any Taxes or deficiency thereof, nor are there any requests for rulings, outstanding subpoenas or requests for information, notice of proposed reassessment of the Transferred Assets or any property owned or leased by the Hong Kong Foreign Subsidiary or any other matter pending between the Hong Kong Foreign Subsidiary, on the one hand, and any Taxing Authority, on the other hand.
(f) Neither the Company nor any The Hong Kong Foreign Subsidiary has ever (i) filed not entered into any transaction that constitutes a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “listed transaction” within the meaning of U.S. Treasury Regulation Section 382(g1.6011-4(b)(2).
(g) No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes of the Hong Kong Foreign Subsidiary that would have continuing effect after the Closing Date;
(h) Neither Seller is a “foreign person” as that term is defined in Section 1445 of the Code;
(i) Since the date of its formation, except the Hong Kong Foreign Subsidiary (i) has been classified as set forth in Section 3.11(fand properly treated as a Controlled Foreign Corporation for U.S. federal income tax purposes and applicable provisions of state and local law, and (ii) has not made an election to be treated as other than a corporation for U.S. federal, state or local income tax purposes;
(j) The Hong Kong Foreign Subsidiary will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Taxable Period (other than a Pre-Closing Tax Period) as a result of any:
(i) use of an improper method of accounting for a Taxable Period ending on or before the Disclosure Schedule.Closing Date (the “Pre-Closing Tax Period”);
Appears in 2 contracts
Samples: Asset Purchase Agreement (Photomedex Inc), Asset Purchase Agreement (ICTV Brands Inc.)
Tax Matters. Except as disclosed in the SEC Reports, the Company and its Material Subsidiaries (ai) Each have prepared and filed all foreign, federal and state income and all other material Tax Returns, reports and declarations required by any jurisdiction to which they are subject, (ii) have paid all Taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such Tax Returns, reports and declarations, except those being contested in good faith, with respect to which adequate reserves have been set aside on the books of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filedits Material Subsidiaries, and has paid, or made adequate provision for (iii) have set aside on the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns books of the Company and each Subsidiary its Material Subsidiaries provisions reasonably adequate for the payment of all material Taxes for periods subsequent to the periods to which such returns, reports or declarations apply. No agreement as to indemnification for, contribution to, or payment of material Taxes exists between the Company or any Material Subsidiary, on the one hand, and any other Person, on the other, including pursuant to any Tax sharing agreement, purchase or sale agreement, partnership agreement or any other agreement not entered into in the ordinary course of business. Except as disclosed in the SEC Reports, neither the Company nor any of its Material Subsidiaries has any material liability for Taxes of any Person (other than the Company or any of its Material Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of any state, local or foreign law), or as a transferee or successor, by contract or otherwise. Since the date of the Company’s most recent Financial Statements, the Company has not incurred any material liability for Taxes other than in the ordinary course of business consistent with past practice. Except as set forth in the SEC Reports, neither the Company nor the Material Subsidiaries has been advised (a) that any of its Tax Returns have been prepared or are being audited as of the date hereof, or (b) of any material deficiency in accordance with all Applicable Laws and generally accepted principles applicable assessment or proposed judgment to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableits Taxes. Neither the Company nor any Subsidiary of its Material Subsidiaries has executed knowledge of any waiver material Tax liability to extendbe imposed upon its properties or assets as of the date of this Agreement that is not adequately provided for. The Company has not distributed stock of another corporation, or otherwise taken has had its stock distributed by another corporation, in a transaction that was governed, or failed purported or intended to take any action that would have the effect of extendingbe governed, the applicable statute of limitations in respect of any Tax liabilities whole or in part, by Section 355 of the Company or any Subsidiary for Internal Revenue Code (i) in the fiscal year two years prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations this Agreement or (ii) undergone an "ownership change" in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 382(g355(e) of the internal Revenue Code, except as set forth ) in Section 3.11(f) conjunction with the purchase of the Disclosure Schedule.Shares. “Tax” or “Taxes” means any foreign, federal, state or local income, gross receipts, license, payroll, employment, excise,
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Neophotonics Corp)
Tax Matters. 3.16.1. The Company and its Subsidiaries (ai) Each have timely filed all material Tax Returns required to be filed by it as of the date hereof, and (ii) have timely paid, or have made appropriate provision on their balance sheets (in accordance with GAAP) for, all Taxes due or (to the Company's knowledge) claimed to be due from it by any taxing authority with respect to any liability for Taxes except where such failure, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on the Company. All Tax Returns described in clause (i) are complete and accurate in all material respects. With respect to periods commencing on or after December 31, 2002, neither the Company nor any of its Subsidiaries has incurred any liability for Taxes which could reasonably be expected to have a Material Adverse Effect other than (i) as reflected on the audited balance sheet of the Company and each Subsidiary has as of December 31, 2001 contained in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paidthe Financial Statements (the "AUDITED BALANCE SHEET") or the Unaudited Balance Sheet, or made adequate provision (ii) federal and state income taxes payable on the Company's income after December 31, 2002. There are no material Liens with respect to Taxes upon any of the Company's or any Subsidiary's properties or assets, except for current Taxes not yet due.
3.16.2. To the payment ofCompany's knowledge, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The none of the Tax Returns of the Company and each Subsidiary or its Subsidiaries have been prepared or are currently being audited or examined by the Internal Revenue Service. Except to the extent reserved for in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes the Audited Balance Sheet, no material issue of which the Company and each or any of its Subsidiaries has received written notice has been raised by a taxing authority in any audit or examination which reasonably could be expected to result in a proposed deficiency, penalty or interest for any other period, which could reasonably be expected to have a Material Adverse Effect on the Company.
3.16.3. There are no outstanding agreements or waivers extending the statutory period of limitation applicable to any Tax Returns required to be filed by, or which include or are treated as including, the Company or any of its Subsidiaries.
3.16.4. Neither Company nor any Subsidiary is involved in or subject to any joint venture, partnership or other arrangement or contract which is treated as a partnership for federal, state, local or foreign income tax purposes.
3.16.5. All material elections with respect to Taxes affecting the Company or any of its Subsidiaries as of the date hereof are required set forth in Schedule 3.16. No consent to the application of section 341(f)(2) of the Code (as defined below) has been filed with respect to any property or assets held, acquired, or to be acquired by law the Company or any of its Subsidiaries.
3.16.6. There are no tax sharing agreements or similar arrangements with respect to withhold and collect have been duly withheld and collected and have been paid overor involving the Company or any of its Subsidiaries.
3.16.7. Neither the Company nor any Subsidiary was included, nor are any of them includible, in any consolidated or unitary Tax Return with any corporation other than such a timely manner, to return of which the proper Authorities to Company is the extent due and payablecommon parent corporation.
3.16.8. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or notagreed to, and whether pastthey are not required to, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or make any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation material adjustment under the Code, except as otherwise set forth in Section 3.11(asection 481(a) of the Disclosure ScheduleInternal Revenue Code of 1986, as amended (the "CODE").
3.16.9. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary Subsidiaries has made any payment on account of payments, is obligated to make any Taxes except regular payments required in the ordinary course of business with respect to current operations payments, or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing contract, agreement or arrangement, except arrangement covering any current or former employee or consultant of the Company or its Subsidiaries that under certain circumstances could require it to make or give rise to any payments that are not deductible as a result of the provisions set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) 280G of the Code concerning collapsible corporations or (ii) undergone the treasury regulations thereunder or would result in an "ownership change" within excise tax to the meaning recipient of any such payment under Section 382(g) 4999 of the Code, except as set forth in on Schedule 3.16.9.
3.16.10. The Company has not been a United States real property holding corporation within the meaning of Section 3.11(f897(c)(2) of the Disclosure ScheduleCode during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Cornerstone Iv LLC), Securities Purchase Agreement (Novatel Wireless Inc)
Tax Matters. Except as set forth in Section 4.12 of the Sellers Disclosure Letter, or, in the case of subsections (b) to (i) below, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) Each Purchased Company and any Subsidiary of a Purchased Company (other than a Subsidiary of a Purchased Company that has been formed or organized under the laws of a Governmental Entity that is other than the District of Columbia or one of the states of the United States) has been classified either as a partnership or disregarded as an entity separate from its owner for United States federal income tax purposes since the date of formation or organization of each Purchased Company.
(b) The Purchased Companies have filed all material Returns required to have been filed, which Returns are true, correct, and complete in all material respects and all such Returns disclose all Taxes required to be paid for the periods covered thereby. All Taxes due and owing by the Purchased Companies (whether or not shown on any Tax Return) have been paid. There are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the Purchased Companies. The Purchased Companies have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other Third Party. No claim has been made by a Governmental Entity in a jurisdiction where a Purchased Company does not file Returns that such Purchased Company is or may be subject to taxation by that jurisdiction.
(c) The unpaid Taxes of the Purchased Companies (i) did not, as of the Balance Sheet Date, exceed the amount of Tax liability (but not including any reserve for deferred Taxes established to reflect timing differences between book and each Subsidiary has Tax income) set forth on the face of the Financial Statements (rather than in any notes thereto) and (ii) will not exceed that amount as adjusted for the passage of time through the Closing Date and in connection with the consummation of the transactions contemplated hereunder, as determined in accordance with all Applicable Laws filed all the past custom and practice of each of the Purchased Companies in filing their Returns.
(d) With respect to the Purchased Companies for taxable periods ended on or after December 31, 2012, no Tax Returns which have been audited or currently are required to be filed, and has paid, the subject of audit. There is no dispute or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The claim concerning any Tax Returns liability of the Company and each Subsidiary have been prepared Purchased Companies claimed or raised in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedwriting by any Governmental Entity. All Taxes which None of the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor Purchased Companies has waived any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax liabilities assessment or deficiency, except with respect to any waivers or extensions that have expired.
(e) None of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision Purchased Companies has been made on a United States real property holding corporation within the most recent balance sheet forming part meaning of IRC §897(c)(2) during the applicable period specified in IRC §897(c)(1)(A)(ii). None of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve Purchased Companies
(i) has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any an affiliated group filing a consolidated group federal income Tax Return (other than exclusively as a member of an affiliated group filing a consolidated federal income Tax Return, the common parent of which is Iconix); (ii) has any liability for the Taxes of any other Person as a transferee or successor, by contract or otherwise, including liability in accordance with the Company and its Subsidiaries) for Tax purposes, except as provisions set forth in Treasury Regulation Section 3.11(a1.1502-6 (or any corresponding provision of state, local, or foreign Tax law); or (iii) is a party to any Tax sharing, Tax allocation or other agreement pursuant to which it has liability for Taxes of another Person (other than an agreement the Disclosure Scheduleprincipal subject matter of which is not Taxes).
(bf) Each None of the Company and each Subsidiary has paid all Taxes which have become due pursuant Purchased Companies will be required to its Returns and has paid all installments include any item of 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 any:
(i) change in method of accounting for a taxable period ending on or prior to the extent required Closing Date;
(ii) “closing agreement” as described in IRC §7121 (or any corresponding or similar provision of state, local or non-U.S. income Tax law) executed on or prior to avoid material underpayment penaltiesthe Closing Date;
(iii) of estimated Taxes due and payableinstallment sale or open transaction disposition made on or prior to the Closing Date; or
(iv) prepaid amount received on or prior to the Closing Date.
(cg) From None of the end Purchased Companies has distributed stock of another corporation or has had its most recent fiscal year stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by IRC §355 or IRC §361.
(h) Sellers have made available to Purchaser prior to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which all material Returns and examination reports and all statements of deficiencies relating to Taxes of the Purchased Companies for taxable periods ending on or after December 31, 2012. No Purchased Company has received any Tax Ruling that would have a continuing effect after the Closing Date. For purposes of the preceding sentence, the term “Tax Ruling” shall mean written rulings of a Governmental Entity relating to Taxes. No power of attorney currently in force has been furnished granted by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Purchased Companies concerning any Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulematter.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (DHX Media Ltd.), Membership Interest Purchase Agreement (DHX Media Ltd.)
Tax Matters. Except as would not, individually or in the aggregate, reasonably be expected to have a material negative impact on the Company and its Subsidiaries, taken as a whole:
(ai) Each All income, franchise and corporation Tax Returns and all other material Tax Returns required to be filed by or on behalf of each of the Company and each Subsidiary has the Subsidiaries have been duly and timely filed with the appropriate Taxing Authority in accordance with all Applicable Laws filed all jurisdictions in which such Tax Returns which are required to be filedfiled (after giving effect to any valid extensions of time in which to make such filings), and has all such Tax Returns are true, complete and correct in all material respects; and (ii) all Taxes payable by or on behalf of each of the Company and the Subsidiaries have been fully and timely paid, or made adequate provision for . The Company and each Subsidiary complied in all material respects with all applicable Laws relating to the payment ofand withholding of Taxes and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts required to be withheld and paid under all applicable Laws. There are no liens as a result of any unpaid Taxes upon any of the assets of the Company or any Subsidiary, other than Permitted Liens.
(b) The most recent financial statements contained in the Company SEC Documents reflect an adequate reserve for all Taxes which have payable by the Company and its Subsidiaries for all taxable periods and portion thereof through the date of such financial statements.
(c) All deficiencies asserted or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The made, in writing, as a result of any examinations by any Taxing Authority of the Tax Returns of the Company and each or any Subsidiary have been prepared fully paid. No issue has been raised by a Taxing Authority in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which any prior examination of the Company and each or any Subsidiary are required that, by law application of the same or similar principles, could reasonably be expected to withhold and collect have been duly withheld and collected and have been paid over, result in a timely mannermaterial proposed deficiency for any subsequent taxable period.
(d) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code since the effective date of Section 355(e) of the Code.
(e) No audit or other administrative or court proceedings are pending with any Governmental Authority with respect to income, franchise or corporation Taxes or other material Taxes of the Company or any of its Subsidiaries and no written notice thereof has been received. No written (or, to the proper Authorities Knowledge of the Company, other) claim has been made by a Taxing Authority in any jurisdiction where the Company or any Subsidiary does not file Tax Returns that it is or may be subject to the extent due and payabletaxation by that jurisdiction. Neither the Company nor any Subsidiary is (i) subject to any private letter ruling of the IRS or comparable rulings of any Taxing Authority or (ii) has executed entered into any waiver agreement with a Taxing Authority the provisions of which remain in force.
(f) The Company has made available to extendParent correct and complete copies of (i) all income, franchise and corporation and all other material Tax Returns of the Company and its Subsidiaries for the preceding three taxable years and (ii) any material audit report issued within the last three (3) years (or otherwise taken with respect to any audit or failed proceeding in progress) relating to take any action that would have the effect of extendingincome, the applicable statute of limitations in respect of any Tax liabilities franchise or corporation Taxes of the Company or any Subsidiary for of its Subsidiaries.
(g) The Company will not be during the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made five (5)-year period ending on the most recent balance sheet forming part Closing Date, a “United States real property holding corporation” within the meaning of Section 897 of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge Code.
(h) None of the Company there are no transactions or matters Company, any Subsidiary or any basis which might other Person on their behalf has (i) agreed to or could result is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of Law or has any knowledge that any Taxing Authority has proposed any such adjustment, or has any application pending with any Taxing Authority requesting permission for any changes in additional Taxes of any nature accounting methods that relate to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each or (ii) executed or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision of Law with respect to the Company and each or any Subsidiary.
(i) Neither the Company nor any Subsidiary has at all times been taxable as is a Subchapter C corporation under party to any Tax sharing, allocation, indemnity or similar agreement or arrangement (whether or not written) pursuant to which it will have any obligation to make any payments after the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure ScheduleClosing. Neither the Company nor any Subsidiary has ever been a member of any consolidated consolidated, combined, affiliated or unitary Tax group (other than exclusively with a group the common parent of which is the Company).
(j) The Company and the Subsidiaries have disclosed on their federal income Tax Returns all positions taken therein that could give rise to substantial understatement of federal income Tax within the meaning of Section 6662 of the Code. None of the Company or any Subsidiary has participated in any “listed transaction” or “reportable transaction” within the meaning of Section 6707A of the Code, Treasury Regulations Section 1.6011-4 (and its Subsidiariesany predecessor provision) for Tax purposesor any applicable comparable provisions of state, except local or non-United States law or regulations.
(k) No goodwill or going concern value of the Company or any Subsidiary was held or used by any of the Company, any Subsidiary or a “related person” (as set forth defined in Section 3.11(a197(f)(9)(C) of the Disclosure ScheduleCode) prior to August 11, 1993.
(bl) Each No Subsidiary has ever been a passive foreign investment company within the meaning of Section 1297 of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to Code or a foreign investment company within the extent required to avoid material underpayment penalties) meaning of estimated Taxes due and payableSection 1246 of the Code.
(cm) From the end of its most recent fiscal year to the date hereof neither Neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company Subsidiaries has, or has ever had, a permanent establishment, branch or agency in any country other than the country in which it is organized and its Subsidiaries (trueresident, correct or has engaged in a trade or business in any country other than the country in which it is organized and complete copies of which have been furnished by the Company resident that subjected it to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedulessuch country, and neither the Company nor any Subsidiary has been notified regarding is a permanent establishment, branch or agency of any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleFund.
(en) Each Company and Subsidiary is and has at all times been tax resident only in its jurisdiction of organization or incorporation.
(o) Neither the Company execution nor the performance of, nor any Subsidiary action taken in pursuance of, this Agreement, nor the satisfaction of any condition to which this Agreement is a party to subject, will result in any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) asset of the Disclosure ScheduleCompany or any Subsidiary being deemed to have been disposed of and reacquired for Tax purposes or will otherwise give rise to a Tax liability for the Company or any Subsidiary.
(fp) Neither No event, transaction, act or omission has occurred which could result in the Company nor or any Subsidiary has ever becoming liable for Tax which is primarily or directly chargeable against or attributable to a person other than the Company or Subsidiary or which is charged by reference to the income or gains of or any supplies, acquisitions or importations made by another person.
(q) Each of the Company and its Subsidiaries (i) filed a consent under Section 341(f) if required by Law, is registered for the purposes of the Code concerning collapsible corporations or VATA, (ii) undergone an "ownership change" within has made, given, obtained and kept up-to-date, full and accurate records, invoices and documents appropriate or required for the meaning of Section 382(g) purposes of the CodeVATA, except as set forth (iii) has complied in Section 3.11(fall respects with all other applicable VAT legislation and in particular has filed all returns and made all payments of VAT on a timely basis, (iv) has not been required by a Taxing Authority to give security under the VATA, and (v) is not a member of the Disclosure Schedulea VAT group.
Appears in 2 contracts
Samples: Merger Agreement (Sage Summit LP), Merger Agreement (GLG Partners, Inc.)
Tax Matters. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) The Company and the Company Subsidiaries have timely filed (taking into account any extension of time within which to file) all Tax Returns that are required to be filed by or with respect to any of them (the “Company Returns”) and all such Company Returns are true, correct and complete.
(ii) The Company and the Company Subsidiaries have timely paid in full to the appropriate Governmental Entity all Taxes required to be paid by any of them, and the financial statements of the Company and the Company Subsidiaries reflect full and adequate reserves, in accordance with GAAP, for all Taxes accrued but not yet paid by the Company or any Company Subsidiary.
(iii) Each of the Company and each Subsidiary the Company Subsidiaries has in accordance with (i) timely paid, deducted, withheld and collected all Applicable Laws filed all Tax Returns which are amounts required to be filed, and has paid, deducted, withheld or collected by any of them with respect to any payment owing to, or received from, their employees, creditors, independent contractors, customers and other third parties (and have timely paid over any amounts so withheld, deducted or collected to the appropriate Governmental Entity) and (ii) otherwise complied with all applicable Legal Requirements relating to the withholding, collection and remittance of Taxes (including information reporting requirements).
(iv) Within the last six (6) years, no claim has been made adequate provision for in writing by any Tax authority in a jurisdiction where the payment of, all Taxes which have Company or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The any Company Subsidiary has not filed Tax Returns of a particular type that the Company and each or any Company Subsidiary have been prepared in accordance is or may be subject to Tax by, or required to file Tax Returns with all Applicable Laws and generally accepted principles applicable respect to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overin, in a timely manner, to the proper Authorities to the extent due and payable. such jurisdiction.
(v) Neither the Company nor any Company Subsidiary has executed will be required to include an item of income (or exclude an item of deduction) in any waiver taxable period (or portion thereof) beginning after the Closing Date as a result of (i) a change in or incorrect method of accounting occurring prior to extendthe Closing Date, (ii) a prepaid amount received (or deferred revenue recognized) or paid, prior to the Closing Date or (iii) an election under Section 108(i) of the Code (or any similar state, local or non-U.S. Legal Requirement).
(b) There are no: (i) examinations, investigations, audits, or otherwise taken other proceedings pending or failed threatened in writing with respect to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities material Taxes of the Company or any Company Subsidiary or any material Company Returns; (ii) extensions or waivers of the limitation period applicable to any material Company Return or the period for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes assessment of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge material Taxes of the Company there are no transactions or matters the Company Subsidiaries; (iii) deficiencies for material Taxes that have been claimed, proposed or assessed by any basis which might or could result in additional Taxes of any nature to Governmental Entity against the Company or any Company Subsidiary for which an adequate reserve has that have not been provided fully satisfied by payment; or (iv) Liens in respect of or on such balance sheet. Each account of material Taxes (other than Company Permitted Encumbrances) upon any of the property or assets of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(aor any Company Subsidiary.
(c) of the Disclosure Schedule. Neither the Company nor any Subsidiary of the Company Subsidiaries (i) is or has ever been been, within the last ten (10) years, a member of any consolidated affiliated, combined, consolidated, unitary or similar group for purposes of filing Tax Returns or paying Taxes, except for any such group of which the Company is the common parent or (ii) has any liability for Taxes of any Person (other than exclusively with the Company and its Subsidiariesor any Company Subsidiary) for Tax purposesunder Treasury Regulations Section 1.1502-6 (or any similar state, except local or non-U.S. Legal Requirement) or as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations a transferee or property presently ownedsuccessor.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither Neither the Company nor any Company Subsidiary is a party to or bound by, or has been notified regarding any pending auditobligation under, except as shown any Tax indemnity, sharing, allocation, or reimbursement agreement or arrangement, other than: (i) customary tax provisions in Section 3.11(dordinary course commercial agreements, the principal purpose of which is not related to Taxes; and (ii) of any agreement or arrangement solely between or among the Disclosure ScheduleCompany and/or the Company Subsidiaries.
(e) Neither the Company nor any Company Subsidiary is a party bound with respect to the current or any tax sharing future taxable period by any closing agreement or arrangement, except as set forth in (within the meaning of Section 3.11(e7121(a) of the Disclosure ScheduleCode or any similar or analogous state, local or non-U.S. Legal Requirement) or other ruling or written agreement with a Tax authority, in each case, with respect to Taxes.
(f) Part 2.12(f) of the Company Disclosure Schedule sets forth the Company’s expected future payments due to its election pursuant to Section 965(h) of the Code.
(g) Within the last two (2) years, neither the Company nor any Company Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355(a) of the Code.
(h) Neither the Company nor any Company Subsidiary has ever participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar state, local or non-U.S. Legal Requirement).
(i) filed Neither the Company nor any Company Subsidiary has taken or agreed to take any action or believes or has any reason to believe that any conditions exist that could prevent or impede the Merger from qualifying as a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “reorganization” within the meaning of Section 382(g368(a) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has Except as set forth in accordance with all Applicable Laws filed Schedule 3.17(a), all Tax Returns which of or with respect to Company have been properly prepared and timely filed. All such Tax Returns are required true, correct and complete in all material respects. Company has paid or withheld (or caused to be filed, and has paid, paid or made adequate provision for the payment of, withheld) all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The shown on such Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent as due and payable. Neither Company is not the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect beneficiary of any extension of time within which to file any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal yearReturn. Adequate provision No claim has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties by an authority in respect thereof, whether disputed a jurisdiction where Company does not file Tax Returns that it is or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and may be subject to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduletaxation by that jurisdiction.
(b) Each Company has fully and timely paid (or adequately reserved for in the Ordinary Course of the Company Business and each Subsidiary has paid consistent with past practice) all Taxes which have become due pursuant to its Returns owed by Company for all taxable periods through and has paid all installments (to including the extent required to avoid material underpayment penalties) of estimated Taxes due and payableClosing Date, except for such Taxes, if any, as are being contested in good faith.
(c) From the end of its most recent fiscal year Company has given or otherwise made available to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (Buyer true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income all Tax Returns (pro forma for Company), examination reports and statements of deficiencies for Company’s past three years, or transactions consummated in the last forty-eight (48) months.
(d) Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor has made all required estimated Tax payments sufficient to avoid any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleunderpayment penalties.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except Except as set forth on Schedule 3.17(e), neither Company nor its predecessor is now or has at any time been a member of any affiliated, consolidated, combined or unitary group as defined in Section 3.11(e) 1504 of the Disclosure ScheduleCode and the Treasury regulations promulgated thereunder.
(f) Neither Except as set forth on Schedule 3.17(f), as of and following the Closing Date, Company nor is not a party to any Subsidiary agreement relating to the sharing, allocation or indemnification of Taxes, or any similar agreement, contract or arrangement (collectively, “Tax Sharing Agreements”) other than the Tax Sharing Agreement provided to Buyer, and does not have any Liability for Taxes of any Person as a transferee or successor, by contract, or otherwise.
(g) There are no outstanding agreements, waivers or arrangements extending the statutory period of limitations applicable to any claim for, or the period for the collection or assessment of, Taxes due from or with respect to Company for any taxable period and no request for any such waiver or extension is currently pending.
(h) No closing agreement pursuant to Section 7121 of the Code (or any predecessor provision) or any similar provision of any state, local or foreign law has ever been entered into by or with respect to Company.
(i) Except as set forth in Schedule 3.17(i), no audit or other proceeding by any Governmental Authority is pending or, to the Knowledge of Company or Seller, threatened with respect to any Taxes due from or with respect to Company, and Company has not received any notification that such an audit or proceeding may be commenced, with respect to any Taxes due from or with respect to Company and all deficiencies for Taxes asserted or assessed against Company (that are not being contested in good faith and for which adequate reserves for the benefit of the Company have been established) have been fully and timely paid, settled or properly reflected in the Financial Statements.
(j) Company has not agreed to nor is required to make any adjustment pursuant to Section 481(a) of the Code (or any predecessor provision), there is no application pending with any Governmental Authority requesting permission for any such change in any accounting method of Company and no Governmental Authority has proposed any such adjustment or change in accounting method.
(k) Company has withheld (or will withhold) from its employees, independent contractors, creditors, stockholders and third parties and timely paid (or will timely pay) to the appropriate Taxing authority proper and accurate amounts in all respects for all periods ending on or before the Closing Date in compliance with all Tax withholding and remitting provisions of applicable Laws and has complied in all respects with all Tax information reporting provisions of all applicable Laws. Company is not, nor has it received any notice that it is, in violation (or with notice will be in violation) of any applicable Law relating to the payment or withholding of Taxes.
(l) Company has not filed a consent under former Section 341(f) of the Code concerning collapsible corporations or Code.
(iim) undergone an "ownership change" Company has not been a United States real property holding corporation within the meaning of Section 382(g897(c)(2) of the Code during the applicable period specified Section 897(c)(1)(A)(ii) of the Code.
(n) There are no Liens for Taxes upon the Assets of Company, except for statutory Liens for current Taxes not yet due, and there are no claims relating to Taxes that, if adversely determined, would result in any Lien on any of the Assets of Company.
(o) Company has not entered into a transaction that is being accounted for under the installment method of Section 453 of the Code or similar provision of state, local or foreign law.
(p) No property owned by Company (i) is property required to be treated as set forth in being owned by another Person pursuant to the provisions of Section 3.11(f168(f)(8) of the Disclosure ScheduleInternal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, (ii) constitutes “tax-exempt use property” within the meaning of Section 168(h)(1) of the Code or (iii) is “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(q) Company does not owe any “corporate acquisition indebtedness” within the meaning of Section 279 of the Code.
(r) Any adjustment of Taxes of Company made by a Governmental Authority, which adjustment is required to be reported to the appropriate state, local, or foreign taxing authorities, has been so reported.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Alion Science & Technology Corp), Stock Purchase Agreement (Identix Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except Except as set forth in Section 3.11(a) of the Disclosure Schedule.Schedule 3.09:
(bi) Each All Returns required to be filed by or on behalf of the Company YieldUP have been duly filed on a timely basis (taking into account extensions) and each Subsidiary such Returns are true, complete and correct in all material respects. (ii) YieldUP (A) has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penaltiesbe paid in full on a timely basis, and (B) of estimated has withheld and paid over all Taxes due required to have been withheld and payablepaid over, and complied with all information reporting and backup withholding requirements, in connection with amounts paid or owing to any employee, creditor, independent contractor or other third party.
(ciii) From To the end knowledge of its most recent fiscal year to the date hereof neither the Company nor YieldUP, there is no Tax deficiency outstanding or assessed against YieldUP. Further, YieldUP has not received any Subsidiary has made written notice of a proposed assessment of taxes, or executed any payment on account waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax which is still in effect. No audit or other examination of any Return of YieldUP is presently in progress, and YieldUP has not been notified of any request for such an audit or other examination. There is not outstanding any power of attorney that is currently in force with respect to any matter relating to Taxes except regular payments required for which YieldUP could be liable.
(iv) Except for those which have been accrued or reserved against on YieldUP Balance Sheet and those incurred in the ordinary course of business since December 31, 1998, YieldUP does not have any liabilities for unpaid Taxes, whether asserted or unasserted, contingent or otherwise, for or with respect to current operations or property presently ownedall periods prior to and including the Closing Date.
(dv) The information shown on YieldUP has not ever been a member of an affiliated group of corporations within the federal income Tax Returns meaning of Section 1504 of the Company Code. Further, YieldUP has not ever been a party to a tax sharing or allocation agreement.
(vi) There are no liens for Taxes (other than for current Taxes not yet due and its Subsidiaries payable) upon the assets of YieldUP.
(true, correct and complete copies of which have been furnished by the Company to VIALOGvii) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns None of the Company and its Subsidiaries have been audited by assets of YieldUP are treated as "tax-exempt use property" within the IRS or applicable state Authority for the taxable periods set forth in meaning of Section 3.11(d168(h) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary Code. YieldUP is not a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent "consenting corporation" under Section 341(f) of the Code concerning collapsible corporations Code. There is no contract, agreement, plan or (ii) undergone an "ownership change" within arrangement covering any employee or former employee of YieldUP that, individually or collectively, could give rise to the meaning payment of any amount that would not be deductible pursuant to Section 382(g) 280G or 162 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.. YieldUP has never been a "United States real property
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Yieldup International Corp), Agreement and Plan of Reorganization (Fsi International Inc)
Tax Matters. (a) Each Commencing with its taxable year ended December 31, 1985 the Company has been, and upon the completion of the transactions contemplated hereby, the Company will continue to be, organized and operated in conformity with the requirements for qualification and taxation as a REIT under Sections 856 through 860 of the Code, and the Company’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code, and no actions have been taken (or not taken which are required to be taken) which would reasonably be expected to cause such qualification to be lost. The Company expects to continue to be organized and to operate in a manner so as to qualify as a REIT in the taxable year ending December 31, 2006 and succeeding taxable years.
(b) The Company and each Subsidiary has in accordance with all Applicable Laws timely and duly filed all Tax Returns which are (as defined below) required to be filedfiled by them, and has paidall such Tax Returns are true, correct and complete, except for such failures to timely file or made adequate provision for inaccuracies that would not, singly or in the payment ofaggregate, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to datea Material Adverse Effect. The Tax Returns of the Company and each Subsidiary have been prepared has timely and duly paid in full all material Taxes (as defined below) required to be paid by them (whether or not such amounts are shown as due on any Tax Return) and has timely and duly paid all required estimated Tax payments in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedlaw. All Taxes which the Company and each Subsidiary There are required by law to withhold and collect have been duly withheld and collected and have been paid overno federal, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendstate, or otherwise taken other Tax audits or failed deficiency assessments proposed or pending with respect to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kindSubsidiary, including interest and penalties in respect thereofand, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company Offerors, no such audits or assessments are threatened. As used herein, the terms “Tax” or “Taxes” mean (i) all federal, state, local, and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto, imposed by any Governmental Entity, and (ii) all liabilities in respect of such amounts arising as a result of being a member of any affiliated, consolidated, combined, unitary or similar group, as a successor to another person or by contract. As used herein, the term “Tax Returns” means all federal, state, local, and foreign Tax returns, declarations, statements, reports, schedules, forms, and information returns and any amendments thereto filed or required to be filed with any Governmental Entity.
(c) To the knowledge of the Offerors, there are no transactions rulemaking or matters similar proceedings before the United States Internal Revenue Service or comparable federal, state, local or foreign government bodies which involve or affect the Company or any basis which might or could result in additional Taxes Subsidiary, which, if the subject of any nature an action unfavorable to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as Subsidiary, could result in a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleMaterial Adverse Effect.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Placement Agreement (Capstead Mortgage Corp), Placement Agreement (Capstead Mortgage Corp)
Tax Matters. (a) Each All material Tax Returns required to have been filed by or in respect of the Company or any of its Subsidiaries (as any deadlines for filing may have been extended by duly filed applications for extension) have been timely filed. All such Tax Returns were true, correct and each Subsidiary has complete in accordance all material respects, were prepared in substantial compliance with all Applicable applicable Laws filed and regulations and disclose all Tax Returns which are Taxes required to be filedpaid for the periods covered thereby, except where such omissions or deficiencies in such Tax Returns would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All Taxes reported on such Tax Returns as due and has owing by the Company or any of its Subsidiaries have been paid, except where such failure to pay the Taxes would not reasonably be expected to have, individually or made adequate provision in the aggregate, a Material Adverse Effect. There are no Liens for the payment of, all Taxes which have or may become (other than Taxes not yet due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns payable) upon any of the assets of the Company or any of its Subsidiaries. The Company and each Subsidiary its Subsidiaries have timely withheld and paid to the appropriate Governmental Authority all Taxes required to have been prepared withheld and paid by it in accordance connection with amounts paid or owing to any employee, independent contractor, creditor, or other third party, and all Applicable Laws Forms W-2 and generally accepted principles 1099 and other applicable forms required with respect thereto have been properly completed and timely filed, except where such nonpayments, omissions or deficiencies would not reasonably be expected to taxation consistently applied. All Taxes which have, individually or in the aggregate, a Material Adverse Effect.
(b) There is no Tax audit or administrative or judicial Tax proceeding pending with respect to the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payableor any of its Subsidiaries. Neither None of the Company nor or any Subsidiary of its Subsidiaries has executed received from any waiver Governmental Authority any written notice indicating an intent to extend, investigate or otherwise taken open an audit or failed to take other review of any action that would have Tax or Tax Return of the effect Company or any of extending, its Subsidiaries.
(c) None of the applicable Company or any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax liabilities assessment or deficiency. No written claim has been made by a jurisdiction in which the Company or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be required to file Tax Returns or pay Taxes in such jurisdiction.
(d) None of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision of its Subsidiaries: (i) has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any an Affiliated Group filing a consolidated group federal Tax Return (other than exclusively with a group the Company and its Subsidiariescommon parent of which was the Company); or (ii) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) Knowledge of estimated Seller Parties, has any actual or potential liability for the Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course other Person under Treas. Reg. Section 1.1502-6 (or any similar provision of business with respect to current operations state, local or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Scheduleforeign Law).
(e) Neither None of the Company nor or any Subsidiary of its Subsidiaries is a party to any tax sharing agreement or agreement, contract, arrangement, except as set forth or plan that has resulted, separately or in Section 3.11(e) the aggregate, in the payment of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “excess parachute payment” within the meaning of Section 382(g) 280G of the Code, except as set forth Code in Section 3.11(f) of connection with the Disclosure Scheduletransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Hawkeye Systems, Inc.), Stock Purchase Agreement (Hawkeye Systems, Inc.)
Tax Matters. Except as set forth in Section 4.12 of the Sellers Disclosure Letter, or, in the case of subsections (b) to (i) below, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) Each Purchased Company and any Subsidiary of a Purchased Company (other than a Subsidiary of a Purchased Company that has been formed or organized under the laws of a Governmental Entity that is other than the District of Columbia or one of the states of the United States) has been classified either as a partnership or disregarded as an entity separate from its owner for United States federal income tax purposes since the date of formation or organization of each Purchased Company.
(b) The Purchased Companies have filed all material Returns required to have been filed, which Returns are true, correct, and complete in all material respects and all such Returns disclose all Taxes required to be paid for the periods covered thereby. All Taxes due and owing by the Purchased Companies (whether or not shown on any Tax Return) have been paid. There are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the Purchased Companies. The Purchased Companies have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other Third Party. No claim has been made by a Governmental Entity in a jurisdiction where a Purchased Company does not file Returns that such Purchased Company is or may be subject to taxation by that jurisdiction.
(c) The unpaid Taxes of the Purchased Companies (i) did not, as of the Balance Sheet Date, exceed the amount of Tax liability (but not including any reserve for deferred Taxes established to reflect timing differences between book and each Subsidiary has Tax income) set forth on the face of the Financial Statements (rather than in any notes thereto) and (ii) will not exceed that amount as adjusted for the passage of time through the Closing Date and in connection with the consummation of the transactions contemplated hereunder, as determined in accordance with all Applicable Laws filed all the past custom and practice of each of the Purchased Companies in filing their Returns. *** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.
(d) With respect to the Purchased Companies for taxable periods ended on or after December 31, 2012, no Tax Returns which have been audited or currently are required to be filed, and has paid, the subject of audit. There is no dispute or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The claim concerning any Tax Returns liability of the Company and each Subsidiary have been prepared Purchased Companies claimed or raised in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently appliedwriting by any Governmental Entity. All Taxes which None of the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor Purchased Companies has waived any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax liabilities assessment or deficiency, except with respect to any waivers or extensions that have expired.
(e) None of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision Purchased Companies has been made on a United States real property holding corporation within the most recent balance sheet forming part meaning of IRC §897(c)(2) during the applicable period specified in IRC §897(c)(1)(A)(ii). None of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve Purchased Companies (i) has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any an affiliated group filing a consolidated group federal income Tax Return (other than exclusively as a member of an affiliated group filing a consolidated federal income Tax Return, the common parent of which is Iconix); (ii) has any liability for the Taxes of any other Person as a transferee or successor, by contract or otherwise, including liability in accordance with the Company and its Subsidiaries) for Tax purposes, except as provisions set forth in Treasury Regulation Section 3.11(a1.1502-6 (or any corresponding provision of state, local, or foreign Tax law); or (iii) is a party to any Tax sharing, Tax allocation or other agreement pursuant to which it has liability for Taxes of another Person (other than an agreement the Disclosure Scheduleprincipal subject matter of which is not Taxes).
(bf) Each None of the Company and each Subsidiary has paid all Taxes which have become due pursuant Purchased Companies will be required to its Returns and has paid all installments include any item of 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 any:
(i) change in method of accounting for a taxable period ending on or prior to the extent required Closing Date;
(ii) “closing agreement” as described in IRC §7121 (or any corresponding or similar provision of state, local or non-U.S. income Tax law) executed on or prior to avoid material underpayment penaltiesthe Closing Date;
(iii) of estimated Taxes due and payableinstallment sale or open transaction disposition made on or prior to the Closing Date; or
(iv) prepaid amount received on or prior to the Closing Date.
(cg) From None of the end Purchased Companies has distributed stock of another corporation or has had its most recent fiscal year stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by IRC §355 or IRC §361.
(h) Sellers have made available to Purchaser prior to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which all material Returns and examination reports and all statements of deficiencies relating to Taxes of the Purchased Companies for taxable periods ending on or after December 31, 2012. No Purchased Company has received any Tax Ruling that would have a continuing effect after the Closing Date. For purposes of the preceding sentence, the term “Tax Ruling” shall mean written rulings of a Governmental Entity relating to Taxes. No power of attorney currently in force has been furnished granted by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Purchased Companies concerning any Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulematter.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Iconix Brand Group, Inc.), Membership Interest Purchase Agreement (Iconix Brand Group, Inc.)
Tax Matters. (a) Each Without the prior written consent of First Defiance, neither Pavilion nor any of its Subsidiaries shall make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to Pavilion or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required limitation period applicable to be filed, and has paidany tax claim or assessment relating to Pavilion or any of its Subsidiaries, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all take any other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, similar action relating to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect filing of any Tax liabilities Return or the payment of any Tax, or offer or agree to do any of the Company foregoing or surrender its rights to do any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduleforegoing.
(b) Each of the Company Pavilion and each Subsidiary has paid its Subsidiaries shall (i) prepare and file or cause to be prepared and filed in a timely manner consistent with past practice all Taxes which have become due pursuant to its Tax Returns and has paid all installments (to the extent that are required to avoid material underpayment penaltiesbe filed (with extensions) of estimated Taxes due on or before the Closing Date, and payable(ii) pay any Tax shown, or required to be shown, on any such Tax Return.
(c) From the end Except as otherwise set forth herein, each of its most recent fiscal year First Defiance and Pavilion agrees not to take any actions subsequent to the date hereof neither of this Agreement that would adversely affect the Company nor any Subsidiary has made any payment on account ability of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company Pavilion and its Subsidiaries (true, correct and complete copies of which have been furnished by shareholders to characterize the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except Corporate Merger as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent tax-free reorganization under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g368(a) of the Code, except and each of First Defiance and Pavilion agrees to take such action as set forth in may be reasonably required, if such action may be reasonably taken, to reverse the impact of past actions which would adversely impact the ability of the Corporate Merger to be characterized as a tax-free reorganization under Section 3.11(f368(a) of the Disclosure ScheduleCode.
Appears in 2 contracts
Samples: Merger Agreement (First Defiance Financial Corp), Merger Agreement (Pavilion Bancorp Inc)
Tax Matters. Notwithstanding anything to the contrary in this Agreement, the representations and warranties set forth in this Section 3.14 shall be the sole and exclusive representations and warranties of Company and its Subsidiaries with respect to Taxes, Tax Returns and Tax Laws (except for those representations and warranties in Section 3.17 relating to Tax Laws). Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect:
(a) Each of the Company and each Subsidiary its Subsidiaries has in accordance with all Applicable Laws timely filed all Tax Returns which are required to be filedfiled (taking into account any extension of time within which to file), and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The such Tax Returns of the Company were correct and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable complete when filed (after giving effect to taxation consistently appliedany amendments thereto). All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Subsidiaries have timely paid or adequately accrued all Taxes shown due and owing by Company and the applicable Subsidiary of Company on such Tax purposesReturns, except as set forth for Taxes being contested in Section 3.11(a) good faith by appropriate proceedings and for which adequate reserves have been provided in the balance sheet by Company or the applicable Subsidiary of Company. Company and its Subsidiaries have complied with all Laws relating to the withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 3111 and 3402 of the Disclosure ScheduleCode or any similar provision of Law, as applicable). No extensions of time to file any material Tax Return are pending.
(b) Each As of the date of this Agreement, (i) there is no audit, examination, deficiency, proposed adjustment or administrative or judicial Tax proceeding pending or, to the knowledge of Company, threatened in writing with respect to any Taxes of Company or any of its Subsidiaries and (ii) there are no outstanding Contracts or waivers extending the statutory period of limitations for a Tax assessment applicable to any Tax Returns of Company or any of its Subsidiaries with respect to a taxable period for which the statute of limitations is still open. There is no power of attorney given by or binding upon Company or any of its Subsidiaries with respect to Taxes for any period for which the statute of limitations (including any waivers or extensions) has not yet expired.
(c) Neither Company nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Company or a wholly-owned Subsidiary of Company) or (ii) has any liability for the Taxes of any Person (other than Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise. Neither Company nor any of its Subsidiaries is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement, or any other Contract (whether written or oral) to pay the Taxes of another Person or to pay the Taxes with respect to transactions relating to any other Person (other than Company and each Subsidiary has paid all its Subsidiaries).
(d) There are no liens for Taxes which have become due pursuant to on any of the assets of Company or any of its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Subsidiaries except for liens for Taxes not yet due and payable.
(ce) From the end of its most recent fiscal year to the date hereof neither the Neither Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except “listed transaction” as set forth defined in Treasury Regulation Section 3.11(e) of the Disclosure Schedule1.6011-4(b)(2).
(f) Neither the Company nor any Subsidiary has ever of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) filed change in method of accounting for a consent under taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 341(f) 7121 of the Code concerning collapsible corporations (or any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local, or foreign Tax law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (iiv) undergone an "ownership change" within prepaid amount received on or prior to the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure ScheduleClosing Date.
Appears in 1 contract
Tax Matters. (ai) Each of Offeror and the Company Offeror Subsidiaries have duly and each Subsidiary timely made or prepared all Tax Returns required to be made or prepared by it, has in accordance with all Applicable Laws duly and timely filed all Tax Returns which are required to be filedfiled by it with the appropriate Governmental Entity and has, in all material respects, completely and correctly reported all income and all other amounts or information required to be reported thereon. Offeror has furnished or made available to Corporation complete and accurate copies of all Tax Returns, and has paidany amendments thereto, filed by Offeror or made adequate provision any Offeror Subsidiary for the payment of, preceding three taxable years.
(ii) Each of Offeror and the Offeror Subsidiaries have (A) duly and timely paid all Taxes which have or may become due and payable pursuant to said Returns by it, (B) duly and timely withheld all Taxes and other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are amounts required by law Law to withhold be withheld by it and collect have been has duly withheld and timely remitted to the appropriate Governmental Entity such Taxes and other amounts required by Law to be remitted by it, and (C) duly and timely collected all amounts on account of sales or transfer taxes, including goods and have been paid overservices, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Entity any such amounts required by Law to be remitted by it.
(iii) The charges, accruals and reserves for Taxes reflected on the Offeror Financial Statements (whether or not due and whether or not shown on any Tax Return but excluding any provision for deferred income taxes) are, in a timely mannerthe opinion of Offeror, adequate under Canadian GAAP to cover Taxes with respect to Offeror and the proper Authorities to Offeror Subsidiaries accruing through the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extenddate hereof.
(iv) There are no proceedings, investigations, audits, assessments, reassessments or otherwise taken claims now pending or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters Offeror, threatened against either Offeror or any basis which might or could result Offeror Subsidiary that propose to assess Taxes in additional Taxes of any nature addition to those reported in the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleReturns.
(bv) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account No waiver of any Taxes except regular payments required in the ordinary course statute of business limitations with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary Taxes has been notified regarding given or requested with respect to Offeror or any pending audit, except as shown in Section 3.11(d) of the Disclosure ScheduleOfferor Subsidiary.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 1 contract
Samples: Business Combination Agreement (Pediment Gold Corp.)
Tax Matters. (a) Each All income and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely filed and all such Tax Returns are true, correct, and complete in all material respects. The Company and its Subsidiaries have at all times duly and properly maintained all Tax Returns, records (including those held in a dematerialized form), files (including the accounting entries file (fichier des écritures comptables) and other documents required by Law to be so maintained for any Tax purpose except if any failure to so maintain that would not be, or would not reasonably be expected to be, material to the Company and its Subsidiaries.
(b) All material amounts of Taxes of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required its Subsidiaries (whether or not shown to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to dateon any Tax Return) have been timely paid or accrued for. The Tax Returns Since the date of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which most recent consolidated financial statements of the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overCompany, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities none of the Company or any Subsidiary of its Subsidiaries has incurred any material liability for Taxes outside the fiscal year prior to ordinary course of business or otherwise inconsistent with past custom and including the most recent fiscal yearpractice. Adequate provision has been made There are no material Tax liens on the most recent balance sheet forming part assets of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (its Subsidiaries other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes not yet due and payable.
(c) From Each of the end Company and its Subsidiaries has timely paid or withheld all material amounts of Taxes required to be paid or withheld with respect to their employees, independent contractors, creditors and other third parties (and timely paid over such Taxes to the appropriate Relevant Authority).
(d) Neither the Company nor any of its most recent fiscal year Subsidiaries has executed any outstanding waiver of any statute of limitations, or outstanding extension of the period, for the assessment or collection of any material Tax and there has been no request by a Relevant Authority to execute such a waiver or extension. No audit or other examination or administrative, judicial or other proceeding of, or with respect to, any material Tax Return or material Taxes of the date hereof Company or any of its Subsidiaries is currently in progress, and neither the Company nor any Subsidiary of its Subsidiaries has made any payment on account been notified in writing of any Taxes except regular payments required request for such an audit or other examination or administrative, judicial or other proceeding. No deficiency for any material amount of Tax has been asserted in writing or assessed by a Relevant Authority against the ordinary course Company or any of business with respect its Subsidiaries that has not been satisfied by payment, settled or withdrawn. No written claim has been made by a Relevant Authority in a jurisdiction where the Company or any Subsidiary of the Company does not file Tax Returns that the Company or such Subsidiary is or may be subject to current operations or property presently ownedtaxation by such jurisdiction.
(de) The information shown on Within the federal income Tax Returns last two years, neither the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution to which Section 355 of the Code (or any similar provision of state, local or non-U.S. Law) applies.
(f) Each of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOGi) is truenot a party to any Tax sharing, correct indemnification or allocation agreement (other than customary Tax indemnification provisions in commercial agreements or arrangements, in each case not primarily relating to Taxes and complete and fairly and accurately reflects entered into in the information purported to be shown. Federal and state income Tax Returns ordinary course of business, or any agreement solely between or among the Company and its Subsidiaries have been audited by the IRS or applicable state Authority Subsidiaries), and (ii) has no liability for the taxable periods set forth in Section 3.11(d) Taxes of the Disclosure Schedulesany Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, and neither local or non-U.S. Law), by reason of being a member of an affiliated, consolidated, combined or unitary group (other than any group that solely includes the Company nor any Subsidiary has been notified regarding any pending auditand/or its Subsidiaries), except or as shown in Section 3.11(d) of the Disclosure Schedulea transferee or successor.
(eg) Neither the Company nor any Subsidiary is of its Subsidiaries has “participated” in a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" “listed transaction” within the meaning of Section 382(gTreasury Regulation § 1.6011-4 (or any similar provision of state, local or non-U.S. Law).
(h) The Company is not a real estate company within the meaning of Article 726 of the Code, except as set forth in Section 3.11(f) of the Disclosure ScheduleFrench tax code.
Appears in 1 contract
Samples: Memorandum of Understanding (Advanced Accelerator Applications S.A.)
Tax Matters. A. The Company (aor a Subsidiary) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all material Taxes which have or may become due and payable pursuant to said Returns and all other material governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are (or a Subsidiary) is required by law to withhold and collect have been duly withheld and collected collected, and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither , except as set forth on Section 3.14 (A) of the Company Disclosure Schedule. The Company (nor any Subsidiary Subsidiary) has not executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company (or any Subsidiary a Subsidiary) for the fiscal year years prior to and including the most recent fiscal year. Adequate Except as set forth in Section 3.14 (A) of the Company Disclosure Schedule, adequate provision has been made on the most recent balance sheet forming part of the Company Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been is a member "consenting corporation" within the meaning of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a341(f) of the Disclosure ScheduleCode.
B. The Company (bor a Subsidiary) Each of the Company and each Subsidiary has paid all material Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payableReturns.
(c) C. From the end of its most recent fiscal year to the date hereof neither hereof, the Company nor any Subsidiary has and its Subsidiaries have not made any payment on account of any Taxes except regular payments required in the ordinary course of business business, consistent with prior practice, with respect to current operations or property presently owned.
(d) D. The information shown on the federal consolidated Federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOGthe Parent) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited examined by the IRS or applicable state Authority for through the taxable periods set forth in Section 3.11(d3.14(D) of the Company Disclosure SchedulesSchedule, and neither the Company nor any Subsidiary has not been notified regarding any pending auditexamination, except as shown in Section 3.11(d3.14(D) of the Company Disclosure Schedule.
(e) Neither the E. The Company nor any Subsidiary is not a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e3.14(E) of the Company Disclosure Schedule.
(f) Neither the F. The Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) is not and within five years of the Code concerning collapsible corporations or (ii) undergone an date hereof has not been, a "ownership changeUnited States real property holding corporation" within the meaning of as defined in Section 382(g) 897 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Desa International Inc)
Tax Matters. (a) Each of WAI and Team have, to the Company and each Subsidiary has in accordance with all Applicable Laws date hereof timely filed all Tax Returns which are tax reports and tax returns required to be filedfiled by WAI and Team, and has WAI and Team have paid all taxes, assessments and other impositions as and to the extent required by applicable law. All federal, state and local income, franchise, sales, use, property, excise and other taxes (including interest and penalties and including estimated tax installments where required to be filed and paid) due from or with respect to WAI and Team as of the date hereof have been fully paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all taxes and other governmental charges assessments and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes levies which the Company and each Subsidiary are WAI or Team is required by law to withhold and or to collect have been duly withheld and collected and have been paid over, in a timely manner, over to the proper Authorities governmental authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there There are no transactions outstanding or matters pending claims, deficiencies or assessments for taxes, interest or penalties with respect to any basis which might taxable period of WAI or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure ScheduleTeam.
(b) Each Except as disclosed in Schedule 4.8 annexed hereto, there are no audits pending with respect to any federal, state or local tax reports or tax returns of the Company WAI or Team, and each Subsidiary has paid all Taxes which no waiver of statutes of limitations have become due pursuant been given or requested with respect to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) any tax years or tax filings of estimated Taxes due and payableWAI or Team.
(c) From the end of its most recent fiscal year WAI and Team have to the date hereof neither been electing small business corporations under Subchapter S of the Company nor any Subsidiary has Internal Revenue Code of 1986, as amended (the "Code"), and the corresponding tax provisions of Florida law, and have filed all tax reports required to be filed by WAI or Team on or prior to the date hereof. WAI and Team have further, to the date hereof, filed all other tax reports and tax returns required to be filed by WAI or Team, and WAI, Team and the Stockholder (as applicable) have paid all taxes, assessments and other impositions as and to the extent required by applicable law. Without limitation of the foregoing, WAI and Team have made any payment on account all required filings and payments to the date hereof in respect of any Taxes except regular payments required in the ordinary course of business franchise, sales, use, property, excise and other taxes (including interest and penalties and including estimated tax installments as required), and there are no outstanding or pending claims, deficiencies or assessments with respect to current operations any taxes, interest or property presently owned.
penalties of WAI or Team. WAI and Team have previously distributed to the Stockholder (dand any former stockholder) all amounts which have been, are, or will be distributable to such persons in respect of all completed tax years of WAI and Team and the 1997 tax year to date. The information shown on the federal income Tax Returns amounts distributed in respect of the Company and its Subsidiaries 1996 tax year were not (true, correct and complete copies of which have been furnished by the Company to VIALOGon a proportionate basis) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns in excess of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority distribution for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedulesprior years, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown 1997 distributions are not in Section 3.11(d) excess of the Disclosure Schedule40% of 1997 net income of either of them.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 1 contract
Tax Matters. Except as set forth on Schedule 6.19:
(a) Each All income Tax Returns and other material Returns required to be filed with respect to the business and assets of the Company Companies, and each Subsidiary has in accordance with all Applicable Laws filed all income Tax Returns and other material Returns required to be filed by the Companies, have been duly and timely (within any applicable extension periods) filed with the appropriate Authorities in all jurisdictions in which such Returns are required to be filed, and has paidall such Returns are true, or made adequate provision for the payment of, correct and complete in all material respects. All Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to dateby the Companies (whether or not shown on any such Return or disputed) have been timely paid. The Tax Returns unpaid Taxes of each Company (i) did not, as of the Company date of the Most Recent Balance Sheet, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and each Subsidiary have been prepared Tax income) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (ii) will not exceed such reserve as adjusted for the passage of time through the Closing Date in accordance with all Applicable Laws past custom and generally accepted principles applicable to taxation consistently appliedpractice of such Company in filing its Return. All Taxes which that any of the Company and each Subsidiary are Companies is required by law Law to withhold and or collect have been duly and timely withheld and or collected and have been timely paid over, in a timely manner, over to the proper Authorities appropriate Tax Authority to the extent due and payable.
(b) There is no dispute or claim pending or, to the Knowledge of Sellers, threatened against any Company by any Authority for any alleged deficiency in Taxes.
(c) None of the Companies has (i) executed a waiver or consent extending any statute of limitations for the assessment or collection of any Taxes which remains outstanding, (ii) applied for or received any letter rulings from the IRS (or any comparable ruling from any other Tax Authority), or (iii) entered into a “closing agreement” as described section 7121 of the Code or any corresponding provision of state, local or non-U.S. Law with any Tax Authority. Neither No power of attorney granted by any Company with respect to any Taxes is currently in force.
(d) None of the Returns of any of the Companies is currently being examined by the IRS or any other Tax Authority. There are no examinations or other administrative or court proceedings relating to Taxes in progress or pending with respect to which any of the Companies has received written notice. No claim has been made by an Authority in a jurisdiction where any Company nor does not file Returns that such Company is or may be subject to taxation by or required to file any Subsidiary Returns in that jurisdiction.
(e) No Company has executed a permanent establishment (within the meaning of any waiver to extendapplicable Tax treaty), or otherwise taken has an office, fixed place of business or failed to take any action that would have the effect of extendingother presence through employees or otherwise, the applicable statute of limitations in respect of any Tax liabilities a country outside of the Company or United States of America.
(f) None of the Companies is a party to any Subsidiary written agreement providing for the fiscal year prior to and including the most recent fiscal yearallocation or sharing of Taxes. Adequate provision has been made on the most recent balance sheet forming part None of the Financial Statements Companies is liable for all the Taxes of any kind, including interest and penalties in respect thereof, whether disputed or notother Person, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge none of the Company there are no transactions Companies is or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated an affiliated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g1504(a) of the Code or any similar group defined under a similar provision of state, local, or non-U.S. law) filing a consolidated U.S. federal income Tax Return.
(g) There are no Liens for Taxes (other than for Taxes not yet due and payable) on any of Company’s assets or the Equity Interests.
(h) No payment made or to be made to any individual by reason of the transactions contemplated hereby will constitute an “excess parachute payment” within the meaning of section 280G of the Code.
(i) None of the Companies is or has been a United States real property holding corporation within the meaning of section 897(c)(2) of the Code during the period specified in section 897(c)(1)(A)(ii) of the Code.
(j) None of the Companies is a party to, except or a partner or member of, any joint venture, partnership, limited liability company, or other arrangement or Contract that is treated as set forth a partnership for U.S. federal income Tax purposes.
(k) None of the Companies is a member of a group or consolidation with any other Person for purposes of VAT. None of the Companies’ income, deductions, credits or allowances is subject to adjustment under section 482 of the Code or similar provision of Law relating to Taxes.
(l) None of the Companies will be required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax Period (or portion thereof) ending on or after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date or for any Straddle Period, including under Section 481 of the Code (or any corresponding or similar provision of state, local, non-U.S. or other Law); (ii) use of an improper method of accounting for a Tax Period ending on or prior to the Closing Date; (iii) “closing agreement” as described in Section 3.11(f) 7121 of the Disclosure ScheduleCode (or any corresponding or similar provision of state, local, or non-U.S. Tax law) entered into prior to the Closing Date; (iv) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local, or non-U.S. income Tax law) prior to the Closing Date; (v) installment sale or open transaction disposition made prior to the Closing, or application of the cash method of accounting to any transaction occurring prior to the Closing; (vi) prepaid amount, advance payment or deferred revenue received prior to the Closing Date; or (vii) election under Section 965 of the Code (or any corresponding or similar provision of state, local, or non-U.S. income Tax law).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bridger Aerospace Group Holdings, Inc.)
Tax Matters. (a) Each All Tax Returns required to be filed by or on behalf of the Company and each Subsidiary has its Subsidiaries with any Governmental Body on or before the Closing Date (the "Company Returns") (i) have been or will be filed when due, and (ii) have been, or will be when filed, accurately prepared in all material respects. The Company and its Subsidiaries have, within the time (including any extensions of applicable due dates) and in the manner prescribed by law, paid all Taxes that are due and payable, except Taxes that, individually and in the aggregate, are not material. The Financial Statements fully accrue all actual and identified contingent liabilities for Taxes with respect to all periods through the dates thereof in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduleaccounting principles.
(b) Each No claim or Legal Proceeding is pending or has been threatened against or with respect to the Company or its Subsidiaries in respect of any Tax. There are no unsatisfied liabilities for Taxes (including liabilities for interest, additions to tax and penalties thereon and related expenses) with respect to any notice of deficiency or similar document received by the Company or its Subsidiaries. There are no liens for Taxes upon any of the assets of the Company and each Subsidiary has paid all or its Subsidiaries, except liens for current Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes not yet due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have withheld and paid in all material respects all Taxes required to have been audited by the IRS withheld and paid in connection with amounts paid or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedulesowing to any employee, and neither the Company nor any Subsidiary has been notified regarding any pending auditindependent contractor, except as shown in Section 3.11(d) of the Disclosure Scheduleshareholder, auditor or other third party.
(ed) Neither the Company nor any Subsidiary is a party have waived any statute of limitations in respect of Taxes or agreed to any tax sharing agreement extension of time with respect to a Tax assessment or arrangementdeficiency, except which will be outstanding as set forth in Section 3.11(e) of the Disclosure ScheduleEffective Time.
(e) There has never been a Tax sharing or allocation agreement in place between the Company or any Subsidiary or any other Person other than those, if any, with respect to which the applicable statute of limitations has run.
(f) Neither the Company nor any Subsidiary (A) has ever been a member of an affiliated group filing a consolidated federal income Tax Return (iother than a group the common parent of which is the Company) filed a consent under Section 341(for (B) has any liability for the Taxes of any person (other than any of the Code concerning collapsible corporations Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.
(iig) undergone an Except as set forth on Schedule 2.9 of the Company Disclosure Schedule, neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement, or plan that has resulted or would result, separately or in the aggregate, in the payment of any "ownership changeexcess parachute payments" within the meaning of Section 382(g280G(a) of the Code, except as set forth in Section 3.11(f) of the Disclosure ScheduleInternal Revenue Code of 1986 (or any similar provision of state, local or foreign law).
Appears in 1 contract
Tax Matters. (a) Each Except as set forth on Schedule 2.8(a) of the Company Disclosure Letter and for such failures as would not have, individually or in the aggregate, a Material Adverse Effect, (i) all income and other material Returns required to be filed by the Company or its Subsidiaries with respect to Taxes have been filed, (ii) all such Returns are complete and accurate in all material respects, (iii) all Taxes due by the Company or its Subsidiaries (whether or not shown on any Return), chargeable as a Lien upon the assets of the Company or its Subsidiaries, claimed to be due by any Governmental Authority, or that may become due by the Company or its Subsidiaries with respect to any period (or portion thereof) ending on or before the Closing Date have been paid or have been adequately reserved for in the books and records of the Company or its Subsidiaries in accordance with GAAP and will be paid when due if due on or before the Closing, (iv) each of the Company and each Subsidiary its Subsidiaries has in accordance with duly and timely withheld all Applicable Laws filed all Tax Returns which are Taxes required to be filed, withheld and has paid, such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or made adequate provision properly set aside in accounts for such purpose and will be duly and timely paid to the proper Governmental Authority if such payment of, all Taxes which have or may become is due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns before the Closing.
(b) Except as set forth on Schedule 2.8(b) of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overDisclosure Letter, in a timely manner(i) no agreement or other document waiving, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extendextending, or otherwise taken or failed to take any action that would have having the effect of waiving or extending, the applicable statute of limitations limitations, the period of assessment or collection of any Taxes on or in respect of any Tax liabilities of the Company or its Subsidiaries, and no power of attorney with respect to any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision such Taxes has been made filed with any Governmental Authority which waiver, extension or power of attorney is currently in effect and (ii) neither the Company nor its Subsidiaries has requested or been granted an extension of time for filing any Return to a date later than the date of this Agreement.
(c) Except as set forth on the most recent balance sheet forming part Schedule 2.8(c) of the Financial Statements for all Taxes Company Disclosure Letter, no Returns of any kind, including interest and penalties or in respect thereofof the Company or its Subsidiaries are currently under audit, whether disputed examination or notinvestigation by any Governmental Authority. Except as set forth on Schedule 2.8(c) of the Company Disclosure Letter, and whether pastno Governmental Authority is now asserting or, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might of its Subsidiaries threatening to assert against the Company or could result in additional its Subsidiaries any deficiency or claim for Taxes or any adjustment to Taxes, and, to the knowledge of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) , no circumstances exist to form the basis for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations asserting such a claim or property presently owneddeficiency.
(d) The information shown on the federal income Tax Returns No amount will be required to be withheld under section 1445 of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns Code in connection with any of the Company and its Subsidiaries have been audited transactions contemplated by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedulethis Agreement.
(e) Neither the Company nor its Subsidiaries, will, as a result of the transactions contemplated by this Agreement, make or become obligated to make any Subsidiary is a party to any tax sharing agreement or arrangement, except "parachute payment" as set forth defined in Section 3.11(e) 280G of the Disclosure ScheduleCode.
(f) Neither Except as set forth on Schedule 2.8(f) of the Company Disclosure Letter, no written claim against or in respect of the Company or any of its Subsidiaries (other than a claim that has been finally settled) has ever been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries, as the case may be, does not file Returns or pay or collect Taxes in respect of a particular type of Tax imposed by that jurisdiction, that the Company or any of its Subsidiaries is or may be subject to an obligation to file Returns or pay or collect Taxes in respect of such Tax in that jurisdiction.
(g) Except as set forth on Schedule 2.8(g) of the Company Disclosure Letter, neither the Company nor any Subsidiary of its Subsidiaries is liable for the Taxes of any other Person (other than the Company and its Subsidiaries), whether pursuant to United States Treasury Regulation section 1.1502-6 (or comparable provision of state or local law), as a transferee or successor, by contract (including, without limitation, any Tax allocation, sharing, indemnity or similar agreement or arrangement) or otherwise.
(h) Except as set forth on Schedule 2.8(h) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has ever received or applied for a Tax ruling, the receipt or failure of which to receive would have, individually or in the aggregate, a Material Adverse Effect, or has entered into a closing agreement pursuant to Section 7121 of the Code, or any predecessor provision or similar provision of state or local law which closing agreement currently is in effect.
(i) filed a consent under Section 341(fExcept as set forth on Schedule 2.8(i) of the Code concerning collapsible corporations Company Disclosure Letter, there are no outstanding adjustments for Tax purposes applicable to the Company or any of its Subsidiaries as a result of changes in methods of accounting, and no material elections for Tax purposes have been made except as reflected in the Returns (i) with respect to the Company or any of its Subsidiaries that are currently in force or (ii) undergone an "ownership change" within by which the meaning Company or any of Section 382(gits Subsidiaries is bound.
(j) True, correct and complete copies of all income, and all material franchise, sales, use, property and payroll Returns filed by or with respect to the Code, except as set forth in Section 3.11(fCompany or any of its Subsidiaries for the past three years have been provided to the Purchaser.
(k) of The Company has elected for the Disclosure Schedule1998 taxable year to file Returns on a consolidated basis with its Subsidiaries for U.S. federal income Tax purposes.
Appears in 1 contract
Samples: Stock Purchase Agreement and Agreement and Plan of Merger (NCP SBG Lp)
Tax Matters. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, Acquired Assets, and Assumed Liabilities:
(a) Each of the Company Except as set forth on Schedule 3.12(a), each Seller and each Subsidiary Non-Debtor has prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all Tax Returns with respect to the Acquired Assets required to be filed by it, and all such filed Tax Returns are true, complete and accurate in all respects.
(b) Except as set forth on Schedule 3.12(b), all Taxes with respect to the Acquired Assets owed by a Seller or any Non-Debtor that are due have been timely paid or have been adequately reserved against in accordance with all Applicable Laws filed all Tax Returns which are required to be filedGAAP, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities except to the extent due and payable. Neither the Company nonpayment thereof is permitted or required by the Bankruptcy Code.
(c) There are no Encumbrances for Taxes on any of the Acquired Assets other than Permitted Encumbrances.
(d) No Seller nor any Subsidiary Non-Debtor has executed received any waiver written notice from a jurisdiction where such Seller does not currently file material Tax Returns indicating that such filings may be required in such jurisdiction with respect to extendthe Acquired Assets, or that the Acquired Assets may otherwise taken or failed be subject to take any action that would have the effect of extending, material taxation by the applicable taxing authority in such jurisdiction. No Seller nor any Non-Debtor has a permanent establishment or fixed place of business in any country other than their country of organization attributable to the Acquired Assets.
(e) None of the Sellers nor any Non-Debtor has waived any statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in with respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge Acquired Assets or agreed to any extension of the Company there are no transactions time with respect to an assessment or matters or any basis which might or could result in additional deficiency for Taxes of any nature with respect to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group Acquired Assets (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its extensions of time to file Tax Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required obtained in the ordinary course of business with respect to current operations Ordinary Course), in each case, which waiver or property presently owned.
(d) The information shown on extension is currently in force and could have effect after the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure ScheduleClosing Date.
(f) Neither Except to the Company extent that doing so would not adversely impact the Acquired Assets or Purchaser’s ownership of the Acquired Assets, none of the Sellers nor any Subsidiary Non-Debtor has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" participated in any “listed transaction” within the meaning of 26 C.F.R. § 1.6011-4(b)(2).
(g) Notwithstanding anything in this Agreement to the contrary, the representations and warranties in this Section 382(g3.12 and Section 3.14 (insofar as they relate to Taxes) shall constitute the sole representations and warranties with respect to Taxes. No representation or warranty is made with respect to the validity of any Tax position or the Code, except as set forth in Section 3.11(favailability of any Tax attribute for any Tax period (or any portion thereof) of following the Disclosure ScheduleClosing.
Appears in 1 contract
Tax Matters. Except as could not reasonably be expected to have a Material Adverse Effect, (a) Each each of Holdings, each Borrower and each of the Company Subsidiaries has filed all Tax returns required to be filed by it and each Subsidiary has timely paid all Taxes payable by it (whether or not shown on a Tax return) that have become due, other than those being contested in good faith and by proper proceedings if it has maintained adequate reserves (in the good faith judgment of management of Holdings, the Borrowers and the Subsidiaries) with respect thereto in accordance with all Applicable Laws filed all Tax Returns which are required to be filedGAAP and it can lawfully withhold such payment, (b) each of Holdings, each Borrower and has each of the Subsidiaries have paid, or made have provided adequate provision reserves (in the good faith judgment of management of Holdings, such Borrower or such Subsidiary, as applicable) in accordance with GAAP for the payment of, of all Taxes which have or may become not yet due and payable pursuant to said Returns and all other governmental charges (c) each of Holdings, each Borrower and assessments received to date. The Tax Returns each of the Company Subsidiaries has withheld amounts from their respective employees for all periods in compliance with the Tax, social, security and each Subsidiary have been prepared in accordance with all Applicable Laws unemployment withholding provisions of applicable law and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been timely paid over, in a timely manner, such withholdings to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheetrespective Governmental Authorities. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation Foreign Borrowers is resident for Tax purposes only in the jurisdiction of its incorporation. In respect of the UK Borrower, under the Codelaw of its jurisdiction of incorporation, except as otherwise set forth it is not necessary that the Credit Documents be filed, recorded or enrolled with any court or other authority in Section 3.11(a) that jurisdiction or that any stamp, registration, notarial or similar Taxes be paid on or in relation to the Credit Documents or the transactions contemplated by the Credit Documents. None of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent Foreign Borrowers is required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor make any Subsidiary has made any payment deduction for or on account of Tax from any Taxes except regular payments required payment it may make under any Credit Document to a Lender (provided that, in the ordinary course case of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished a payment made by the Company UK Relevant Borrower, such payment is to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary a Lender which is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure ScheduleQualifying Lender).
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 1 contract
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable Except as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a3.16(a) of the Bermuda Holdco Disclosure ScheduleLetter, all Tax Returns required to be filed by, on behalf of or with respect to Bermuda Holdco or any of its Subsidiaries have been duly and timely filed and are complete and correct. Neither All Taxes (whether or not reflected on such Tax Returns) required to be paid with respect to Bermuda Holdco or any of its Subsidiaries have been duly and timely paid. All Taxes required to be withheld by Bermuda Holdco or any of its Subsidiaries have been duly and timely withheld, and such withheld Taxes have been either duly and timely paid to the Company proper Governmental Authority or properly set aside in accounts for such purpose. Except as set forth in Section 3.16(a) of the Bermuda Holdco Disclosure Letter, neither Bermuda Holdco nor any Subsidiary of its Subsidiaries is subject to tax in any jurisdiction other than its jurisdiction of incorporation.
(b) No written agreement or other document waiving or extending, or having the effect of waiving or extending, the statute of limitations or the period of assessment or collection of any Taxes with respect to Bermuda Holdco or any of its Subsidiaries, and no written power of attorney with respect to any such Taxes, has ever been filed or entered into with any Governmental Authority. No Taxes with respect to Bermuda Holdco or any of its Subsidiaries are currently under audit, examination or investigation by any Governmental Authority or the subject of any judicial or administrative proceeding. No Governmental Authority has asserted or threatened to assert any deficiency, claim or issue with respect to Taxes or any adjustment to Taxes against Bermuda Holdco or any of its Subsidiaries with respect to any taxable period for which the period of assessment or collection remains open. Except as set forth in Section 3.16(b) of the Bermuda Holdco Disclosure Letter, no elections for Tax purposes (including any entity classification elections) have been made with respect to Bermuda Holdco or any of its Subsidiaries that are in force or by which Bermuda Holdco or any of its Subsidiaries is bound. No jurisdiction in which Bermuda Holdco or any of its Subsidiaries has not filed a particular type of Tax Return or paid a particular type of Tax has asserted that Bermuda Holdco or such Subsidiary, as applicable, is required to file such Tax Return or pay such Tax in such jurisdiction.
(c) Except as set forth at Section 3.16(c) of the Bermuda Holdco Disclosure Letter, neither Bermuda Holdco nor any of its Subsidiaries (i) has received or applied for a Tax ruling or entered into an agreement with any Governmental Authority, in either case that would be binding upon Bermuda Holdco or any of its Subsidiaries after the Effective Time, (ii) is or has been a member of any consolidated affiliated, consolidated, combined or unitary group for purposes of filing Tax Returns or paying Taxes, (other than exclusively with iii) has any liability for the Company and its Subsidiaries) for Tax purposesTaxes of any Person (as a transferee or successor, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and any Tax sharing or indemnity agreement or other contractual agreements, or otherwise) or (iv) has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor filed any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently ownedU.S. federal income tax election.
(d) The To the Knowledge of Bermuda Holdco, Bermuda Holdco (or Parent on behalf of Bermuda Holdco) has provided all information shown on in response to requests from the federal income Tax Returns Company’s accountants, Ernst & Young, in emails dated March 9, 13, 14 and 22, 2012 in respect of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company Ernst & Young’s inquiries to VIALOG) determine whether Bermuda Holdco is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth classified as a “passive foreign investment company” as defined in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) 1297 of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 1 contract
Samples: Merger Agreement (Tower Group, Inc.)
Tax Matters. Except as set forth on Schedule 3.12: ----------- -------------
(ai) Each All federal, state and local Tax returns required to be filed by or on behalf of the Company or the Subsidiary (or the Group, with respect to any Taxes for which the Company or the Subsidiary could be liable) have been accurately prepared, and each Subsidiary has in accordance with have been duly and timely filed, and all Applicable Laws filed Taxes (including Taxes withheld from employees' salaries and all Tax Returns which are other withholding Taxes and obligations and deposits required to be filedmade by or with respect to the Company or the Subsidiary with respect to such withholding Taxes or otherwise), and has interest, penalties, assessments and/or deficiencies due with respect to such Tax returns have been timely paid, or made to the extent not due and payable as of the Closing Date, adequate provision for the payment of, all Taxes which have thereof has been made on the financial statements or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns the respective books of account of the Company and each the Subsidiary.
(ii) There is no Tax deficiency outstanding or assessed against the Company or the Subsidiary have been prepared in accordance (or the Group, with all Applicable Laws and generally accepted principles applicable respect to taxation consistently applied. All any Taxes for which the Company and each or the Subsidiary could be liable). Further, neither the Company, the Subsidiary, nor the Group, with respect to any Taxes for which the Company or the Subsidiary could be liable, has received any written notice of a proposed assessment of taxes, or executed any waiver of any statute of limitations on, or extending the period for, the assessment or collection of any Tax which is still in effect. No audit or other examination of any return of the Company or the Subsidiary (or the Group, with respect to any Taxes for which the Company or the Subsidiary could be liable) is presently in progress, nor has the Company, the Subsidiary or the Group been notified in writing of any request for such an audit or other examination. There is not outstanding any power of attorney that is currently in force with respect to any matter relating to Taxes for which the Company or the Subsidiary could be liable.
(iii) None of the assets of the Company or the Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid overtreated as "tax-exempt use property" within the meaning of Section 168(h) of the Code. No member of the Group is a "consenting corporation" under Section 341(f) of the Code. There is no contract, in a timely manneragreement, plan or arrangement covering any employee or former employee of the Company or the Subsidiary that, individually or collectively, could give rise to the proper Authorities payment of any amount that would not be deductible pursuant to Section 280G or 162 of the extent due and payableCode. Since January 1, 1999, neither the Company nor the Subsidiary has been a party to a distribution qualifying for tax-free treatment under Section 355 of the Code.
(iv) Since January 1, 1999, neither the Company nor the Subsidiary has been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code, except only with members of the affiliated group of which the Company or the Subsidiary currently is a member. Neither the Company nor any the Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary liability for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge Person (other than members of the Company there are no transactions or matters or any basis affiliated group of which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each the Subsidiary has at all times been taxable are currently members) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a Subchapter C corporation under the Codetransferee or successor, except as otherwise set forth in Section 3.11(a) of the Disclosure Scheduleby contract, or otherwise. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposesFurther, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any the Subsidiary is a party to a tax sharing or allocation agreement, which agreement has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have not been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedulesterminated, and neither the Company nor the Subsidiary will have any Subsidiary has been notified regarding liability under any pending audit, except as shown in Section 3.11(d) of tax sharing or allocation agreement on or after the Disclosure ScheduleClosing Date.
(ev) Neither There are no liens for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure ScheduleSubsidiary.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure Schedule.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Corinthian Colleges Inc)
Tax Matters. (a) Each of the Company and each Subsidiary has in accordance with all Applicable Laws filed all All Tax Returns which are required to be filed, and has paid, or made adequate provision for filed by the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Limited Liability Company and each Subsidiary have been accurately prepared in accordance with all Applicable Laws material respects and generally accepted principles applicable to taxation consistently applied. All timely filed and all Taxes for which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Limited Liability Company or any Subsidiary for may be held liable (other than the fiscal year prior Taxes referred to and including in the most recent fiscal year. Adequate provision has next sentence), have been made on paid or accrued within the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters prescribed period or any basis which might or could result in additional extension. All Taxes of any nature required to be withheld by the Limited Liability Company or any Subsidiary Subsidiary, have been collected and withheld, and have been either paid to the respective governmental agencies, set aside in accounts for which an adequate reserve has not been provided on such balance sheet. Each purpose, or accrued, reserved against and entered upon the books and records of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduleemployer.
(b) Each Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Limited Liability Company or any Subsidiary, as the case may be, there are no Tax liens upon any property of the Limited Liability Company and each or any Subsidiary has paid all except for liens for current Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes not yet due and payable.
(c) From The Limited Liability Company qualifies (and has since the end date of its most recent fiscal year formation qualified) and, will qualify immediately after the Closing Date, to the date hereof be treated as a limited liability company for federal income tax purposes and neither the Limited Liability Company nor any Subsidiary taxing authority has made any payment on account of any Taxes except regular payments required in the ordinary course of business taken a position inconsistent with respect to current operations or property presently ownedsuch treatment.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) Seller is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is not a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) of the Disclosure Schedule.
(f) Neither the Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership changeforeign person" within the meaning of Section 382(g1445 of the Code and it will furnish the Investor with an affidavit that satisfies the requirements of Section 1445(b)(2) of the Code, except in the form attached as set forth in Section 3.11(fExhibit 3.16.
(e) None of the Disclosure ScheduleLimited Liability Company’s payroll, property, or receipts, or other factors used in a particular state's apportionment or allocation formula results in an apportionment or allocation of business income to any state other than and the Limited Liability Company has no nonbusiness income that is allocated, apportioned, or otherwise sourced to any state other than .
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement
Tax Matters. (a) Each of the Company and each Subsidiary Companies has in accordance with all Applicable Laws filed all Tax Returns which are required by the appropriate Governmental Authority to be filedfiled by it, and has paidall such Tax Returns are true, or made adequate provision for the payment ofcomplete and accurate in all material respects. Excluding real estate taxes, (i) all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The owing by the Companies (whether or not shown on any Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and Returns) have been paid over, in a timely manner, to the proper Authorities to the extent and (ii) any unpaid Taxes due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities owing as of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal yearClosing Date will be paid by Seller. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary No written claim has ever been made by an authority in a member of jurisdiction where the Companies do not file Tax Returns that any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Scheduleis or may be subject to taxation by that jurisdiction.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods Except as set forth in Section 3.11(don Schedule 3.18(b) of the Disclosure Schedules:
(i) None of the Companies (or any of their members or managers on behalf of the Companies) has consented to extend the time or waived the statute of limitations in relation to any Tax that may be assessed or collected by any Governmental Authority that will extend beyond the Closing Date;
(ii) None of the Companies (or any of their members or managers on behalf of the Companies) has requested or been granted an extension of the time for filing any Tax Return which is due prior to the Closing Date to a date later than the Closing Date;
(iii) There is no action, and neither suit, taxing authority proceeding or audit now in progress or pending against or with respect to the Company nor Companies (or their members relating to the Companies) with respect to any Subsidiary Tax;
(iv) No written claim has been notified regarding made by any pending auditGovernmental Authority in a jurisdiction where a Company does not file Tax Returns that such Company is or may be subject to Tax by that jurisdiction;
(v) Each of Buck’s, except Chicago SPE and Collinsville is and will be an S corporation for federal income tax purposes up to and including the date that their stock is contributed to Seller. After such contribution and prior to their conversions to limited liability companies, each of Buck’s, Chicago SPE and Collinsville will be a “qualified subchapter S subsidiary” of Buck’s Holdco (as shown that term is defined in Section 3.11(d1361(b)(3)(B) of the Disclosure Schedule.Code) for federal income tax purposes. From the time of their conversions to limited liability companies and up to and including the Closing Date, each of Buck’s, Chicago SPE and Collinsville will be a disregarded entity for federal income tax purposes. Each of Xxxxxxxx North and Xxxxxxxx South is and will be a disregarded entity for federal income tax purposes and each will be a disregarded entity for federal income tax purposes up to and including the Closing Date. C.T. Xxxxxx is and will be a qualified subchapter S subsidiary of Buck’s for federal income tax purposes up to and including the date that Buck’s stock is contributed to Seller. After such contribution and prior to its conversion to a limited liability company, C.T. Xxxxxx is and will be a qualified subchapter S subsidiary of Seller for federal income tax purposes. From the time of its conversion to a limited liability company and up to and including the Closing Date, C.T. Xxxxxx will be a disregarded entity for federal income tax purposes. From the date of its formation and up to and including the Closing Date, Buck’s Intermediate will be a disregarded entity for federal income tax purposes;
(evi) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except as set forth in Section 3.11(e) None of the Disclosure Schedule.
(f) Neither the assets of any Company nor any Subsidiary has ever (i) filed a consent under Section 341(f) of the Code concerning collapsible corporations or (ii) undergone an "ownership change" constitutes tax-exempt bond financing property within the meaning of Section 382(g) 168 of the Code, except and none of such assets is subject to a lease, safe harbor lease or other contract as set forth a result of with such Company is not treated as the owner for U.S. federal income Tax purposes;
(vii) None of the Companies has been a member of an Affiliated Group (other than a group of which either of the Companies is or was the parent or has any Liability for Taxes of any Person (other than the Companies) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise);
(viii) None of the Companies is a party to or bound by any Tax allocation or Tax sharing agreement;
(ix) There are no Liens (other than Permitted Liens) for Taxes (other than Taxes not yet due and payable) upon any of the assets of the Companies;
(x) Each of the Companies has withheld and paid (or will pay when due) all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, member, partner or other third party;
(xi) None of the Seller or any of the Companies is a “foreign person” within the meaning of Section 3.11(f1445 of the Code;
(xii) No Company (or member thereof by virtue of its ownership in such Company) will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) use of an improper method of accounting for a taxable period ending on or prior to the Closing Date; (C) “closing agreement” as described in Code Section 7121 (or any corresponding, or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date; (D) intercompany transactions or any excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local or foreign tax laws); (E) installment sale or open transaction disposition made on or prior to the Closing Date; (F) prepaid amount received on or prior to the Closing Date; or (G) any election under Section 108(i) of the Disclosure ScheduleCode or comparable provisions of state, local or foreign Tax laws;
(xiii) No Company has entered into any “reportable transactions” as defined in the Treasury Regulations;
(xiv) No Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code Sections 355 or 361; and
(xv) No Company has a permanent establishment (within the meaning of any applicable Tax treaty) or otherwise has an office or fixed place of business in any country other than the United States.
Appears in 1 contract
Samples: Equity Purchase Agreement (Caseys General Stores Inc)
Tax Matters. Except as set forth in Section 4.09 of the Company Disclosure Schedules:
(a) Each of the The Company and each Subsidiary of its Subsidiaries have filed, or has in accordance with all Applicable Laws caused to be filed on its behalf, all Tax Returns which are required to be filedfiled by it, and has paidall such Tax Returns are true, complete and correct in all respects.
(b) The Company and each of its Subsidiaries have timely paid or made adequate provision for properly accrued as of the payment ofdate hereof all Taxes due and owning by it (whether or not actually shown on its Tax Returns). The Company and each of its Subsidiaries have, within the time and in the manner prescribed by applicable Law, withheld and fully paid over to the appropriate taxing authority all Taxes which they are required to withhold from amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. There are no Liens for Taxes (other than Permitted Liens) upon any of the properties or assets of the Company or any of its Subsidiaries. Since the Balance Sheet Date, the Company has not incurred any Liability for Taxes other than in the ordinary course of business.
(c) Neither the Company nor any of its Subsidiaries have waived any statute of limitations with respect to any Taxes or may become due and payable pursuant agreed to said Returns and all other governmental charges and any extension of time with respect to any Tax assessment or deficiency, which waiver or extension is still outstanding. None of the Company nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return.
(d) There are no pending or threatened audits or administrative or judicial Proceedings, similar examinations or additional Tax assessments received from any authority with respect to date. The any Tax Returns of the Company and each Subsidiary or any of its Subsidiaries. There are no current, pending or threatened tax assessments proposed by any Governmental Entity that would affect the liability of the Company or any of its Subsidiaries with respect to Taxes. Except for claims that have been prepared settled, closed or otherwise resolved or which are set forth on Section 4.09 of the Company Disclosure Schedules, no claim has ever been made by any taxing authority in accordance with all Applicable Laws and generally accepted principles applicable any jurisdiction where the Company or any of its Subsidiaries does not file a particular Tax Return that the Company or any of its Subsidiaries is or may be subject to taxation consistently applied. All Taxes which the Company and each Subsidiary are by that jurisdiction or is required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, submit any Tax Returns to the proper Authorities to the extent due and payablesuch jurisdiction. Neither the Company nor any Subsidiary of its Subsidiaries has executed granted any waiver power of attorney with respect to extendany matters related to Taxes that is currently in force.
(e) To the extent the acquisition of interests in the Seller by the Employees were governed by Section 83 of the Code, or otherwise taken or failed such Employees each made valid elections described in Section 83(b) of the Code with respect to take any action that would have such interests in the effect of extending, the applicable statute of limitations in respect of any Tax liabilities Seller.
(f) None of the Company or any Subsidiary of its Subsidiaries is a party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code (or any comparable provision of state, local or foreign Tax law) (including any payment deemed to be made in connection with the transactions contemplated by this Agreement).
(g) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the fiscal year Closing Date as a result of any: (A) adjustment made on or prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and Closing Date pursuant to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a481(a) of the Disclosure ScheduleCode (or any comparable provision of state, local or foreign Tax Law), (B) change in method of accounting for a taxable period ending on or prior to the Closing Date; (C) agreement with any taxing authority executed on or prior to the Closing Date; (D) intercompany transaction or excess loss account described in U.S. Treasury Regulations under Section 1502 of the Code (or any corresponding or comparable provision of state, local or foreign income Tax Law) for taxable periods ending on or prior to the Closing Date; (E) installment sale or open transaction disposition made on or prior to the Closing Date; or (F) prepaid amount received on or prior to the Closing Date. Neither the Company nor any Subsidiary of its Subsidiaries has ever been any election in effect pursuant to Section 108(i) of the Code.
(h) The Company and each of its United States Subsidiaries is a member of the same affiliated, combined, consolidated unitary or other similar group, the parent of which was the Company, prior to the Closing Date under any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposesprovision of U.S. federal, except as set forth in Section 3.11(a) of the Disclosure Schedulelocal, state or foreign Law.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(ei) Neither the Company nor any Subsidiary of its Subsidiaries (A) has been a member of an affiliated, combined, consolidated, unitary or other similar group during the period commencing with the Seller’s ownership of the Company and ending on the Closing Date under any provision of U.S. federal, state, local or foreign Law (other than a group the common parent of which was the Company) or (B) is a party to, is bound by or has any obligation under, any agreement relating to allocating or sharing the payment of, or liability for, Taxes, or has liability for Taxes of another Person (other than the Company or any tax sharing agreement or arrangement, except as set forth in of its Subsidiaries) under Section 3.11(e) 1.1502-6 of the Disclosure ScheduleU.S. Treasury Regulations (or comparable provisions of state, local or foreign law), as a transferee or successor or by contract.
(fj) Neither the Company nor any Subsidiary of its Subsidiaries has ever any indemnity obligation for any Taxes imposed under Section 4999 or 409A of the Code.
(k) 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 that was purported or intended to be governed in whole or in part by Code Section 355 or Code Section 361.
(l) Section 4.09(l) of the Company Disclosure Schedules correctly sets forth (i) filed a consent each entity classification election that has been made pursuant to Section 301.7701-3 of the U.S. Treasury Regulations with respect to the Company and each of its Subsidiaries, and (ii) with respect to each such election, (A) the U.S. federal income Tax classification (under Section 341(f301.7701-3 of the U.S. Treasury Regulations) pursuant thereto, (B) the effective date thereof, and (C) whether such election was effective on the date of formation for the Company and each of its Subsidiaries. No entity classification election pursuant to Section 301.7701-3 of the U.S. Treasury Regulations has been made for the Company or any of its Subsidiaries within the last 60 months.
(m) Section 4.09(m) of the Code concerning collapsible corporations or Company Disclosure Schedules correctly sets forth a list of all Subsidiaries of the Company that have been treated as a “controlled foreign corporation” (iias defined in Section 957 of the Code) undergone an "ownership change" for U.S. federal income Tax purposes during the period of time that the Seller has owned the Company. Except as disclosed in Section 4.09(m) of the Company Disclosure Schedules, during the period of time that the Seller has owned the Company, the Company has never recognized any “subpart F income” (within the meaning of Section 382(g952 of the Code) with respect to any of the Subsidiaries listed in Section 4.09(m) of the Company Disclosure Schedules and none of the Subsidiaries listed in Section 4.09(m) of the Company Disclosure Schedules own directly or indirectly any “United States property” (within the meaning of Section 956 of the Code).
(n) Neither the Company nor any of its Subsidiaries is or has been a party to any “reportable transaction,” as defined in U.S. Treasury Regulation Section 1.6011-4(b).
(o) Neither the Company nor any of its Subsidiaries is resident for Tax purposes or has a branch, permanent establishment, agency of other taxable presence in any jurisdiction other than its jurisdiction of organization.
(p) The Seller (i) is classified as either a disregarded entity owned by a United States partnership or as a United States partnership for U.S. federal income Tax purposes, (ii) is not a “publicly traded partnership” within the meaning of Section 7704 of the Code, if applicable, and (iii) has filed any applicable Tax Returns consistent with the representations in (i) and (ii) above
(q) The Swap Arrangements (i) are “hedging transactions” (as defined in Section 1221(b) of the Code), except (ii) were clearly identified as set forth a “hedging transaction” (as defined in Section 3.11(f1221(b) of the Disclosure ScheduleCode) before the close of the day on which they were acquired, originated, or entered into and (iii) were entered into by Xxxx in the ordinary course of Xxxx’ trade or business.
Appears in 1 contract
Tax Matters. All tax returns and tax reports required to be filed with respect to the income, operations, business or assets of PARTNERS have been timely filed (aor appropriate extensions have been obtained which extensions are listed on Schedule 4.18) Each of with the Company appropriate governmental agencies in all jurisdictions in which such returns and each Subsidiary has in accordance with all Applicable Laws filed all Tax Returns which reports are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary foregoing as filed are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Tax liabilities of the Company or any Subsidiary for the fiscal year prior to and including the most recent fiscal year. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result in additional Taxes of any nature to the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each of the Company and each Subsidiary has at all times been taxable as a Subchapter C corporation under the Code, except as otherwise set forth in Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Subsidiary has ever been a member of any consolidated group (other than exclusively with the Company and its Subsidiaries) for Tax purposes, except as set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payable.
(c) From the end of its most recent fiscal year to the date hereof neither the Company nor any Subsidiary has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently owned.
(d) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies in all material respects, and reflect accurately all liability for taxes of PARTNERS for the periods to which such returns relate, and all amounts shown as owing thereon have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shownpaid. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d) of the Disclosure Schedule.
(e) Neither the Company nor any Subsidiary is a party to any tax sharing agreement or arrangement, except Except as set forth in Section 3.11(e) on Schedule 4.18, all income, profits, franchise, sales, use, value added, occupancy, property, excise, payroll, withholding, FICA, FUTA and other taxes (including interest and penalties), if any, collectible or payable by PARTNERS or relating to or chargeable against any of its assets, revenues or income or relating to any employee, independent contractor, creditor, stockholder or other third party through the Disclosure Schedule.
(f) Neither date hereof which were required to be collected and/or paid by PARTNERS, were fully collected and paid by such date. Except as set forth on Schedule 4.18, no taxation authority has sought to audit the Company nor records of PARTNERS for the purpose of verifying or disputing any Subsidiary tax returns, reports or related information and disclosures provided to such taxation authority, or for PARTNERS' alleged failure to provide any such tax returns, reports or related information and disclosure. Except as provided on Schedule 4.18, no claims or deficiencies have been asserted against or inquiries raised with PARTNERS with respect to any taxes or other governmental charges or levies which have not been paid or otherwise satisfied, including claims that, or inquiries whether, PARTNERS has ever (i) not filed a tax return that it was required to file, and, to PARTNERS' knowledge, there exists no reasonable basis for the making of any such claims or inquiries. PARTNERS has not waived any restrictions on assessment or collection of taxes or consented to the extension of any statute of limitations relating to taxation other than filing extensions as set forth on Schedule 4.18. PARTNERS has not filed a consent under Section 341(f) of the Code concerning collapsible corporations corporations, is not and has never been a party to a tax allocation or (ii) undergone an "ownership change" sharing agreement or a member of a group filing a consolidated federal income tax return and has not been a United States real property holding corporation within the meaning of Code Section 382(g) of 897(c)(2), during the Code, except as set forth applicable period specified in Code Section 3.11(f) of the Disclosure Schedule897(c)(1)(A)(ii).
Appears in 1 contract
Tax Matters. (a) Each Neither the Corporation nor any Subsidiary has any liability, obligation or commitment, actual or contingent, for the payment of any Tax, except such as have arisen since the Financial Statement Date in the usual and ordinary course of its business. Except as disclosed in Section 4.12(a) of the Company Disclosure Schedule, neither the Corporation nor any of the Subsidiaries is in arrears with respect to any required withholdings or instalment payments of any material Tax. There are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessment or reassessment of Tax, the filing of any Tax Return or the payment of any Tax by the Corporation or any Subsidiary, as the case may be, under the Income Tax Act (Canada) or any other legislation imposing Tax on the Corporation or any Subsidiary, as the case may be.
(b) Except as disclosed in Section 4.12(b) of the Disclosure Schedule, the Corporation and each of the Subsidiaries has filed within the times and in the manner prescribed by law all Tax Returns required to be filed by or with respect to the Corporation or any of the Subsidiaries, as the case may be, and have paid all Taxes required to be paid (whether or not shown on any Tax Return). All such Tax Returns are correct and complete in all material respects and the Corporation and each Subsidiary has made complete and accurate disclosure in such Tax Returns and in all materials accompanying such Tax Returns.
(c) Except as disclosed in Section 4.12(c) of the Disclosure Schedule, no material claim (including any claim for refunds or credits) in any Tax Return filed by the Corporation or any Subsidiary has been refused or denied by any relevant Tax authority and all such claims were made in accordance with all Applicable Laws filed all Tax Returns which are required to be filed, and has paid, or made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Returns and all other governmental charges and assessments received to date. The Tax Returns relevant provisions of the Company and each Subsidiary have been prepared in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which the Company and each Subsidiary are required by law to withhold and collect have been duly withheld and collected and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Neither the Company nor any Subsidiary has executed any waiver to extend, or otherwise taken or failed to take any action that would have the effect of extending, the applicable statute of limitations in respect of any Income Tax liabilities of the Company Act (Canada) or any Subsidiary for the fiscal year prior to and including the most recent fiscal yearother applicable law. Adequate provision has been made on the most recent balance sheet forming part of the Financial Statements for all Taxes of any kindin accordance with U.S. generally accepted accounting principles and, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and to the knowledge of the Company there are no transactions or matters or any basis which might or could result Corporation, charges, accruals and reserves on the books of each of the Corporation and the Subsidiaries in additional Taxes respect of any nature liability for Taxes are sufficient, to meet any reasonable assessment or reassessment for instalments and Taxes not yet due and any other claim for the Company or any Subsidiary for which an adequate reserve has not been provided on such balance sheet. Each payment of the Company and each Subsidiary has at all times been taxable additional Taxes.
(d) Except as a Subchapter C corporation under the Code, except as otherwise set forth disclosed in Section 3.11(a4.12(d) of the Disclosure Schedule. Neither , each of the Company nor any Subsidiary Corporation and the Subsidiaries has ever been withheld from all payments made to its officers, directors, employees, debtholders, shareholders and other Persons the amount of all Taxes including but not limited to income tax, federal or provincial pension and medical plan contributions, unemployment insurance contributions and other deductions required to be withheld therefrom and, where such Taxes are due, have paid the same to the proper receiving officers or Tax authorities on a member of any consolidated group timely basis.
(other than exclusively with the Company and its Subsidiariese) for Tax purposes, except Except as set forth disclosed in Section 3.11(a4.12(e) of the Disclosure Schedule, neither the Corporation nor any of the Subsidiaries is a party to or bound by any Tax sharing or allocation agreement, nor does it have any current or potential contractual obligation to indemnify any other Person with respect to Taxes.
(bf) Each The Corporation is eligible for investment tax credits with respect to certain of its research and development activities within the meaning of the Company and each Subsidiary has paid all Taxes which have become due pursuant to its Returns and has paid all installments Income Tax Act (to the extent required to avoid material underpayment penalties) of estimated Taxes due and payableCanada).
(cg) From the end of its most recent fiscal year With respect to the date hereof neither Corporation’s investment tax credits, the Company nor Corporation has complied with applicable provisions and requirements of the Income Tax Act (Canada) and the Corporation has satisfied at all relevant times the relevant criteria and conditions entitling it to any Subsidiary such credits it has made any payment on account of any Taxes except regular payments required in the ordinary course of business with respect to current operations or property presently ownedclaimed.
(dh) The information shown on the federal income Tax Returns of the Company and its Subsidiaries (true, correct and complete copies of which have been furnished by the Company to VIALOG) is true, correct and complete and fairly and accurately reflects the information purported to be shown. Federal and state income Tax Returns of the Company and its Subsidiaries have been audited by the IRS or applicable state Authority for the taxable periods set forth Except as disclosed in Section 3.11(d) of the Disclosure Schedules, and neither the Company nor any Subsidiary has been notified regarding any pending audit, except as shown in Section 3.11(d4.12(h) of the Disclosure Schedule, neither the Corporation nor any of the Subsidiaries has any knowledge of: (x) any liability for any Tax to be imposed upon its properties or assets as of the date of this Agreement that is not adequately provided for in the Financial Statements or in its books in respect of any such liabilities arising or accruing since the Financial Statement Date; or (y) any investigations, audits or reassessments initiated or to be initiated against the Corporation or a Subsidiary by any Tax authority. No jurisdiction in which the Corporation or any Subsidiary has not filed Tax Returns has indicated to the Corporation that Tax Returns should have been filed in such jurisdiction.
(ei) Neither The Corporation has made or obtained records or documents that meet the Company nor requirements of paragraphs 247(4)(a) to (c) of the Income Tax Act (Canada) with respect to transactions and arrangements between the Corporation and any Person with whom the Corporation was not dealing at Arm’s Length.
(j) Each of the Corporation and each Subsidiary is a party to any tax sharing agreement or arrangementhas complied with all material registration, except reporting, collection and remittance requirements in respect of Taxes. Except as set forth disclosed in Section 3.11(e4.12(j) of the Disclosure Schedule, the Corporation and the Subsidiaries have collected or withheld from each receipt from or in respect of any of their past and present customers (or other Persons paying amounts to the Corporation or the Subsidiaries) the amount of all Taxes (including goods and services tax and provincial, state and foreign sales taxes) required to be collected and have remitted such Taxes when due, in the form required under the appropriate legislation or made adequate provision in the books of each of the Corporation and the Subsidiaries for the payment of such amount to the proper receiving Tax authorities.
(fk) Neither There are no circumstances existing which could result in the Company nor application of section 78 of the Income Tax Act (Canada) to the Corporation or a Subsidiary and the Corporation or any Subsidiary has ever (i) filed a consent under Section 341(f) of not claimed any reserve that may be included in income for any period ending after the Code concerning collapsible corporations or (ii) undergone an "ownership change" within the meaning of Section 382(g) of the Code, except as set forth in Section 3.11(f) of the Disclosure ScheduleClosing Date.
Appears in 1 contract
Samples: Convertible Preferred Share Subscription Agreement (Mitel Networks Corp)
