Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns. (ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company. (iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination. (v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof. (vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. (vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code. (viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries. (ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement. (x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code. (xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 5 contracts
Samples: Merger Agreement (HMT Technology Corp), Merger Agreement (Komag Inc /De/), Merger Agreement (Komag Inc /De/)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiary have (a) timely filed all U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to any and all Taxes concerning or attributable to the Company or its Subsidiary or their respective operations and such Returns are true and correct in all material respects and have been completed in accordance with applicable Legal Requirements, and (b) timely paid all Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnspaid.
(ii) The Company has registered with all appropriate Governmental Entities and each of its subsidiaries has timely reported, withheld, and remitted, as of the Effective Time will have withheld applicable, with respect to its employees Employees and other third parties, all federal U.S. federal, state, local, provincial and state non-U.S. income taxesTaxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution ActAct amounts, Taxes pursuant to the Federal Unemployment Tax Act amounts and all other Taxes required to be withheld, except such Taxes which are not material to the Companyreported and/or withheld and remitted.
(iii) Neither the Company nor its Subsidiary has been delinquent in the payment of any of its subsidiaries has material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiary, nor has the Company or any of its subsidiaries Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the Company’s knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiary is presently in progress, nor has the Company or any of its subsidiaries Subsidiary been notified in writing of any request for such an audit or other examination.
(v) . No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Subsidiary has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiary or any representative thereof.
(v) Neither the Company nor its Subsidiary is or has been at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(vi) Neither the Company nor its Subsidiary has been or will be required to include any material income or gain in or exclude any material deduction or loss from income for any tax period (or portion thereof) after the Closing as a result of (A) a change in method of accounting made, (B) closing agreement (within the meaning of Section 7121 of the Code or any comparable provision of applicable law) executed, (C) installment sale or open transaction disposition consummated, or (D) prepaid amount received, prior to the Closing.
(vii) Neither the Company nor its subsidiaries Subsidiary has any liability Liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Financials in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to and neither the Company, other than Company nor its Subsidiary has incurred any liability Liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business date of the Company and its subsidiaries Balance Sheet other than in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any course of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codebusiness.
(viii) Neither the Company nor any its Subsidiary has (a) ever been a member of its subsidiaries has filed any consent agreement under Section 341(fan Affiliated Group, (b) of the Code or agreed to have Section 341(f)(2) of the Code apply ever been a party to any disposition Tax sharing, indemnification or allocation agreement or arrangement, nor does it owe any amount under any such agreement or arrangement, (c) any liability for the Taxes of a subsection any Person (f) asset (as defined in Section 341(f)(4) of the Code) owned by the other than Company or its Subsidiary), under Treasury Regulation § 1.1502 6 (or any similar provision of its subsidiariesstate, local or non-U.S. law including any arrangement for group or consortium Tax relief or similar arrangement), as a transferee or successor, by contract or agreement, by operation of law, or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries Subsidiary has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code Code.
(x) in Neither the two years prior Company nor its Subsidiary is or has been a party to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (gain recognition agreement within the meaning of Section 355(e367 of the Code.
(xi) Neither of the Company nor its Subsidiary has engaged in a reportable transaction under Treasury Regulations Section 1.6011-4(b), including any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2), or any comparable provision of state, local or non-U.S. law.
(xii) To the Company’s knowledge, neither the Company nor its Subsidiary is subject to Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment or other place of business in that country. No claim has ever been made by a Governmental Entity that the Company or its Subsidiary is or may be subject to Tax in a jurisdiction in which it does not file Returns.
(xiii) The Company and its Subsidiary are in compliance in all material respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of Company and its Subsidiary. The prices for any property or services (or for the use of any property) provided by or to the Company or its Subsidiary are arm’s-length prices for purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Code.
(xiv) The Company is in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (“Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) Neither the Company nor its Subsidiary is or has been a “Passive Foreign Investment Company” within the meaning of Section 1297(a) of the Code or a “Controlled Foreign Corporation” within the meaning of Section 957 of the Code. Neither the Company nor its Subsidiary owns, directly or indirectly, any interests in an entity that is or has been a Passive Foreign Investment Company or a Controlled Foreign Corporation.
(xvi) Neither the Company nor its Subsidiary has been the subject of an IRS private letter ruling or similar Tax ruling under state, local or non-U.S. law that has continuing effect. There are no requests for rulings or determinations in conjunction with respect of any Tax pending between the MergerCompany or its Subsidiary and any Governmental Authority.
(xvii) To the Company’s knowledge, the Company qualifies as an “Industrial Company” within the meaning of the Law for the Encouragement of Industry (Taxes), 1969. Section 3.6(b) of the Company Disclosure Letter lists each of the Company’s facilities that have “Approved Enterprise” or “Benefited Enterprise” Tax status, within the meaning of the Law for the Encouragement of Capital Investments, 1959. The consummation of the Merger will not have any adverse effect on such qualification as an Industrial Company or its Approved Enterprise Status, or require any recapture of any previously claimed Israeli Tax incentive, subject to the Investment Center Approval.
(xviii) To the Company’s knowledge, there has been no indication from any Israeli Tax authority that the consummation of the Merger would adversely affect the Surviving Company’s ability to set-off for Israeli Tax purposes in the future any and all losses accumulated by the Company as of the Closing Date.
Appears in 3 contracts
Samples: Merger Agreement (Scopus Video Networks Ltd.), Merger Agreement (Scopus Video Networks Ltd.), Merger Agreement (Harmonic Inc)
Tax Returns and Audits. (i) The Company Minority Bank has prepared and each of its subsidiaries have timely filed all material U.S. federal, state, local and foreign non-U.S. returns, elections, notices, filings, declarations, forms, claims for refund, estimates, information statements statements, reports and reports other documents, including any amendments, schedules, attachments, supplements, appendices and exhibits thereto ("RETURNS") relating to Taxes “Tax Returns”), with the appropriate governmental entity in all jurisdictions in which such Tax Returns are required to be filed by the Company relating to any and each of its subsidiaries with any Tax authority, except such Returns which are not material all Taxes concerning or attributable to the CompanyMinority Bank. The Company Such Tax Returns have been prepared and each completed in accordance with applicable Legal Requirements in all material respects. Schedule 3.16(b)(i) lists all of its subsidiaries have paid all Taxes shown the jurisdictions in which the Minority Bank is required to be due on such Returnsfile Tax Returns or pay Taxes.
(ii) The Company Minority Bank has duly and each of its subsidiaries as of the Effective Time will have withheld with respect timely paid, or caused to its employees be duly and timely paid, all federal Taxes that are due and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes payable by it (whether or not shown or required to be withheld, except such Taxes which are not material to the Companyshown on any Tax Return).
(iii) Neither The Minority Bank has duly and timely withheld or deducted all Taxes and other amounts required by applicable laws to be withheld or deducted by it, including Taxes and other amounts required to be deducted or withheld by it in respect of any amount paid or credited, or deemed to be paid or credited, by it to or for the Company nor account or benefit of any of its subsidiaries Person, including any former or current Employees, officers or directors and any non-resident Person, and has duly and timely remitted, or will duly and timely remit, as applicable, to the appropriate governmental entity such taxes and other amounts required by applicable laws to be remitted by it, for all periods ending on or prior to the Closing Date.
(iv) The Minority Bank has not entered into any material Tax deficiency outstandingagreement or other arrangement, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver waiver, providing for any extension of time, including any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any Tax, and the Minority Bank is not the beneficiary of any such extension of time, which will be outstanding and in effect on the Closing Date, within which (A) to file any Tax Return covering any Taxes for which the Minority Bank may be liable; (B) to file any elections, designations or similar filings relating to Taxes for which the Minority Bank may be liable; (C) the Minority Bank may be required to pay or remit Taxes or amounts on account of Taxes; or (D) any governmental entity may assess, reassess, or collect Taxes for which the Minority Bank may be liable.
(ivv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority Minority Bank is presently in progress, nor has the Company or any of its subsidiaries Minority Bank been notified in writing of any request for such an audit or other examination.
(vvi) No material adjustment There are no liens on the assets of the Minority Bank relating to any Returns filed or attributable to Taxes, except for inchoate tax liens that are attached by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary courselaw.
(vii) There is no contract, agreement, plan or arrangement to which The Minority Bank has not been at any time a “United States Real Property Holding Corporation” within the Company or any meaning of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(mSection 897(c)(2) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither The Minority Bank (1) has never been a member of an affiliated group (within the Company nor meaning of Code §1504(a)) filing a consolidated, combined, unitary or similar Tax Return, (2) does not owe any of its subsidiaries amount under any Tax sharing, indemnification, allocation or similar agreement, (3) has filed never been a party to or bound by any consent agreement under Section 341(f) of Tax sharing, indemnification, allocation or similar agreement, contract plan or arrangement allocating or sharing the Code payment of, indemnity for or agreed liability for Taxes that will not be terminated on the Closing Date without any future liability to have Section 341(f)(2) of First Community, the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company Minority Bank or any of its their respective subsidiaries, or (4) has no liability for the Taxes of any Person (other than Minority Bank) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(ix) Neither No claim in writing has ever been made by any governmental entity in a jurisdiction in which the Company nor any of its subsidiaries Minority Bank does not file Tax Returns that the Minority Bank is party or may be subject to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementTaxes in such jurisdiction.
(x) None of the Company's The Minority Bank has not entered into, been a party to or its subsidiaries' assets are tax exempt use property otherwise participated (directly or indirectly) in any “listed transaction” within the meaning of Treasury Regulations Section 168(h1.6011-4(b)(2) or any other “reportable transaction” within the meaning of the CodeTreasury Regulations Section 1.6011-4(b) or any transaction requiring disclosure under similar provisions of state, local or foreign Tax laws.
(xi) Neither The Minority Bank has not applied for any Tax ruling which, if granted, would affect the Company nor computation of Tax liability of the Minority Bank for any of its subsidiaries periods (or portions thereof) beginning on or after the Closing Date.
(xii) The Minority Bank has constituted either a "distributing corporation" not agreed to make, or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment is not required to make, any adjustment under Section 355 481(a) of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part by reason of a "plan" change in accounting method or "series otherwise.
(xiii) There is no contract covering any current or related transactions" former employee or current or former independent contractor of the Minority Bank that, individually or collectively, could give rise to a payment by the Minority Bank (or the provision by the Minority Bank of any other benefits such as accelerated vesting) that would not be deductible by the Minority Bank by reason of Code Section 280G or subject to an excise Tax under Code Section 4999. The Minority Bank has no indemnity obligations for any excise Taxes imposed under Code Section 4999 or for any Taxes of any employee, including the Taxes under Code 409A.
(xiv) The Minority Bank has disclosed on its Tax Returns all positions taken therein that could reasonably give rise to a substantial understatement of Taxes within the meaning of Code Section 355(e) of the Code) in conjunction with the Merger6662.
Appears in 3 contracts
Samples: Merger Agreement (First Community Financial Partners, Inc.), Merger Agreement (First Community Financial Partners, Inc.), Merger Agreement (First Community Financial Partners, Inc.)
Tax Returns and Audits. (i) The Each of the Company and each of its subsidiaries have timely ---------------------- Subsidiaries has duly filed all federal income tax returns to be filed by it and has duly filed all other federal, state, local and foreign returns, estimates, information statements tax returns and reports ("RETURNS") relating to Taxes required to be filed by the Company it and each of has duly paid or made adequate provision on its subsidiaries books in accordance with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period generally accepted accounting principles for the assessment payment of all taxes which have been incurred or collection of any Tax.
(iv) No audit or other examination of any Return are due and payable. Except as set forth in Section 3.18 of the Company Disclosure Schedule (a) there are no pending audits, examinations or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company proposed audits or any of its subsidiaries been notified examinations of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns tax returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
Subsidiaries and (vib) Neither neither the Company nor any of its subsidiaries has Subsidiaries have given or been requested to give waivers or extensions of any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material statute of limitations relating to the Company, other than any liability payment of taxes for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as Subsidiaries may be liable. As of the date of this Agreement, the consolidated federal income tax returns of the Company and its Subsidiaries have been audited by the Internal Revenue Service (or the appropriate statute of limitations has expired) for all fiscal years through and including but not limited to September 30, 1992. All deficiencies asserted or proposed as a result of any examinations or audits of any tax returns have been paid or adequately provided for on the provisions of this Agreement, covering any employee or former employee books of the Company or any one of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) Subsidiaries in accordance with generally accepted accounting principles. Except as set forth in Section 3.18 of the Code. There is no contractCompany Disclosure Schedule, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither neither the Company nor any of its subsidiaries Subsidiaries (i) is a party to any agreement providing for the allocation, payment or sharing of taxes among the Company, its Subsidiaries or any third parties, (ii) has any net operating loss carryovers, net capital loss carryovers or any other items the use of which, by deduction or credit or otherwise, would or may be limited by Section 382 of the Code (except as a result of the transactions contemplated hereby), (iii) has filed any consent agreement under to the application of Section 341(f) of the Code or agreed with respect to have any of its property, (iv) has an application pending with respect to any tax requesting permission for a change in accounting method, (v) is required to make any adjustments to income pursuant to Section 341(f)(2) 481 of the Code apply or (vi) owns or leases any real property or otherwise holds any interest in real property that would or may subject the parties hereto or the Surviving Corporation to any disposition of a subsection (f) asset (transfer or gains tax as defined in Section 341(f)(4) a result of the Code) owned by Merger (unless Purchaser elects to merge the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying into Merger Sub and except for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with transactions after the Merger).
Appears in 3 contracts
Samples: Merger Agreement (Gateway 2000 Inc), Merger Agreement (Advanced Logic Research Inc), Merger Agreement (Gateway 2000 Inc)
Tax Returns and Audits. (i) The Company has prepared and each of its subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company Company: (A) has timely paid all Taxes it is required to pay and each of its subsidiaries as of the Effective Time will have (B) has withheld with respect to its employees (and timely paid over to the appropriate taxing authority) all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to The Company does not have any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability liabilities for any material unpaid federal, state, local and foreign Taxes which has have not been accrued for or reserved against on the Company Balance Sheet in accordance with GAAPFinancials, whether asserted or unasserted, contingent or otherwise, which is material and the Company and/or ORA have no knowledge of any basis for the assertion of any such liability attributable to the CompanyCompany or its assets or operations. Since the date of the Interim Balance Sheet, other than the Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries other than in the ordinary coursecourse of business.
(vi) The Company has provided to Monaco or its legal counsel copies of all federal and state income and all state sales and use Tax Returns filed by the Company for all periods since inception.
(vii) There is are (and as of immediately following the Closing there will be) no contractliens, agreementpledges, plan charges, claims, security interests or arrangement to which other encumbrances of any sort (“Liens”) on the assets of the Company relating to or any attributable to Taxes other than Permitted Exceptions and the lien of its subsidiaries is a party ad valorem real estate taxes which are not delinquent as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeClosing Date.
(viii) Neither the Company nor ORA has any knowledge of its subsidiaries any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company other than Permitted Exceptions and the lien of ad valorem real estate taxes which are not delinquent as of the Closing Date.
(ix) None of the Company’s assets are treated as “tax-exempt use property” within the meaning of Section 168(h) of the Code.
(x) No adjustment relating to any Tax Return filed by the Company has been proposed formally or, to the knowledge of the Company or ORA, informally by any taxing authority to the Company or any representative thereof.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ixxii) Neither The Company has (a) never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was ORA), (b) never been a party to a Tax sharing, indemnification or allocation agreement nor does the Company nor owe any amount under any such agreement, (c) no liability for the Taxes of its subsidiaries is any Person (other than the Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) never been a party to any joint venture, partnership or has any obligation under any tax-sharing, tax indemnity or tax allocation other agreement or arrangementthat could be treated as a partnership for Tax purposes.
(xxiii) None of the Company's or its subsidiaries' assets are tax exempt use The Company is not, nor has at any time been, a “United States real property holding corporation” within the meaning of Section 168(h897(c)(2) of the Code.
(xixiv) Neither The Company’s tax basis in its assets is accurately reflected on the Company’s tax books and records and will not be affected by any transactions contemplated by this Agreement.
(xv) The Company nor any of its subsidiaries has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two (2) years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with the MergerAcquisition.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/)
Tax Returns and Audits. (ia) The Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have has paid all Taxes shown to be due on such Returns.
(iib) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iiic) Neither Except to the extent accrued or reserved on the Company Balance Sheet, the Company has not been delinquent in the payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed (to the knowledge of the Company) or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivd) No To the knowledge of the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(ve) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vif) Neither the The Company nor any of its subsidiaries has does not have any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(viig) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiih) Neither the The Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ixi) Neither The Company is not a party to nor does the Company nor any of its subsidiaries is party to or has have any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(xj) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization and Merger (Seeq Technology Inc), Agreement and Plan of Reorganization and Merger (Lsi Logic Corp), Agreement and Plan of Reorganization and Merger (Lsi Logic Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have timely filed all material federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"including amendments thereto) relating to any and all Taxes (“Tax Returns”) required to be filed by any of them and have paid, or have adequately reserved (in accordance with GAAP) for the Company and each of its subsidiaries with any Tax authoritypayment of, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheldpaid, except and the most recent financial statements contained in the Company SEC Reports reflect an adequate reserve (in accordance with GAAP) for all Taxes payable by the Company and its Subsidiaries through the date of such financial statements. No material deficiencies for any Taxes which are not material have been asserted or assessed, or to the Knowledge of the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed proposed, against the Company or any of its subsidiariesSubsidiaries that are not subject to adequate reserves (in accordance with GAAP), nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(ivii) The Company and each of its Subsidiaries have timely paid or withheld with respect to their Employees (and paid over any amounts withheld to the appropriate Taxing authority) all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other similar Taxes required to be paid or withheld.
(iii) No audit or other examination of any material Tax Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(iv) The Company has made available to Parent or its legal counsel, copies of all material Tax Returns for the Company and each of its Subsidiaries filed for all periods beginning February 1, 2003 or later.
(v) No material adjustment relating to any Returns filed by Neither the Company or nor any of its subsidiaries Subsidiaries is, nor has been proposed in writing formally or informally by at any Tax authority to time, a “United States Real Property Holding Corporation” within the Company or any meaning of its subsidiaries or any representative thereofSection 897(c)(2) of the Code.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (xA) in the two years prior to the date of this Agreement or (yB) in a distribution which could otherwise constitute constitutes part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with that includes the Merger.
(vii) Neither the Company nor any of its Subsidiaries has engaged in a “reportable transaction,” as set forth in Treas. Reg. § 1.6011-4(b), or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation or other form of published guidance as a “listed transaction,” as set forth in Treas. Reg. § 1.6011-4(b)(2).
(viii) Neither the Company nor any of its Subsidiaries has taken any action or has failed to take any action or knows of any fact, agreement, plan or other circumstance that would cause the Merger to fail to qualify as a reorganization with the meaning of Section 368(a) of the Code.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Brocade Communications Systems Inc), Merger Agreement, Agreement and Plan of Reorganization (McData Corp)
Tax Returns and Audits. (i1) The Company and each of its subsidiaries Subsidiaries have (a) timely filed or caused to be filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to Taxes required concerning or attributable to be filed by the Company and each or any of its subsidiaries with any Tax authoritySubsidiaries, except and such Returns which are not true, correct, and complete in all material respects and have been completed in accordance with applicable Laws and (b) timely paid or withheld (and timely paid over any withheld amounts to the Company. The Company and each of its subsidiaries have paid appropriate Governmental Authority) all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheldpaid or withheld whether or not shown as due on any Return. To the Knowledge of the Company, except such Taxes which are not material no claim has ever been asserted in writing by any Governmental Authority to the CompanyCompany or any of its Subsidiaries in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction which has resulted or would reasonably be expected to result in an obligation to pay material Taxes. Except as set forth in Section 4.09(b) of the Disclosure Schedule, there are no liens for material Taxes (other than Taxes not yet due and payable) upon any of the assets of the Company or any of its Subsidiaries.
(iii2) Neither the Company nor any of its subsidiaries Subsidiaries has any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv3) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(v4) No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereofthereof that remains unpaid.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 3 contracts
Samples: Merger Agreement (Dragon Pharmaceutical Inc), Merger Agreement (Dragon Pharmaceutical Inc), Merger Agreement (Dragon Pharmaceutical Inc)
Tax Returns and Audits. Except as set forth in Section 2.10 of the Disclosure Letter:
(i) The Company as of the Effective Time will have prepared and each of its subsidiaries have timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to any and all Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material concerning or attributable to the Company. The Company , or its operations and each of its subsidiaries such Returns are true and correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company and each of its subsidiaries as of the Effective Time (A) will have paid or accrued all Taxes it is required to pay or accrue as shown on the Returns and (B) will have withheld and timely remitted with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act taxes and other Taxes required to be withheld, except such Taxes which are not material to the Companywithheld and remitted.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the The Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability no liabilities for any material unpaid federal, state, local and foreign Taxes which has have not been accrued for or reserved on the Company Balance Sheet against in accordance with GAAPGAAP on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation date of the business of the Company and its subsidiaries Current Balance Sheet other than in the ordinary coursecourse of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all foreign, federal and state income and all state sales and use Returns filed for all years as to which any applicable statute of limitations has not expired.
(vii) There is are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of the Company relating to or attributable to Taxes other than Liens for taxes not yet due and payable.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company.
(ix) As of the Effective Time, there will not be any contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation as an expense under any tax-sharing, tax indemnity or tax allocation agreement or arrangementapplicable law.
(x) None The Company is not a party to any tax sharing, indemnification or allocation agreement nor does the Company owe any amount under any such agreement.
(xi) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's or its subsidiaries' assets are tax exempt use property books and records.
(xii) The Company is not, and has not been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xixiii) Neither The Company is an accrual basis taxpayer and its tax basis and its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerCompany's tax books and records.
Appears in 2 contracts
Samples: Merger Agreement (Tut Systems Inc), Agreement and Plan of Reorganization (Tut Systems Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.8:
(i) The Company as of the Closing will have prepared and each of its subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company and each of its subsidiaries as of the Effective Time Closing: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently currently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to The Company does not have any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability liabilities for any material unpaid federal, state, local and foreign Taxes which has have not been accrued for or reserved against on the Company Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material and the Company has no knowledge of any basis for the assertion of any such liability attributable to the Company, other than any liability its assets or operations.
(vi) The Company has made available to Healtheon copies of all federal and state income and all state sales and use Tax Returns for unpaid Taxes that may have accrued all periods since December 31, 1999 in connection with the operation date of the business of the Company and its subsidiaries in the ordinary courseCompany's incorporation.
(vii) There is are (and as of immediately following the Effective Date there will be) no liens, pledges, charges, claims, security interests or other encumbrances of any sort ("LIENS") on the assets of the Company relating to or attributable to Taxes.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company.
(ix) None of the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Closing, there will not be any contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections Section 280G, 404 G or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 162 of the Code.
(viiixi) Neither the The Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ixxii) Neither The Company is not a party to a tax sharing or allocation agreement nor does the Company nor owe any of its subsidiaries is party to or has any obligation amount under any tax-sharing, tax indemnity or tax allocation agreement or arrangementsuch agreement.
(xxiii) None of the Company's or its subsidiaries' assets are tax exempt use The Company is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xixiv) Neither The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerCompany's tax books and records.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Tax Returns and Audits. (i) The Company Launch and each of its subsidiaries have timely filed all material federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company or on behalf of Launch and each of its subsidiaries with any Tax authority, except such Returns which are not true, correct and complete in all material to the Company. The Company respects, and Launch and each of its subsidiaries have paid (where required by law or otherwise accrued) all Taxes shown to be due on such Returns.
(ii) The Company Launch and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any There is no material Tax deficiency outstanding, proposed or assessed against the Company Launch or any of its subsidiaries, nor has the Company Launch or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax that is still in effect.
(iv) No audit or other examination of any Return of the Company Launch or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Launch or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment of Tax relating to any Returns filed by the Company Launch or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Launch or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Launch nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Launch Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyLaunch, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Launch Balance Sheet in connection with the operation of the business of the Company Launch and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Launch is a party as of the date of this Agreementparty, including but not limited to the provisions of this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of the Company Launch or any of its subsidiaries that, individually or collectively, would be reasonably be expected likely to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company Launch nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesLaunch.
(ix) Neither the Company Launch nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None . Since April 16, 1997, neither Launch nor any of the Company's its subsidiaries has been a distributing corporation or its subsidiaries' assets are tax exempt use property within the meaning of a controlled corporation in a transaction described in Section 168(h355(a) of the Code.
(x) Except as may be required as a result of the Merger, Launch and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) Neither Launch has made available to Yahoo! or its legal or accounting representatives copies of all foreign, federal and state income tax and all state sales and use tax Returns for Launch and each of its subsidiaries filed for all periods since its inception.
(xii) There are no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the Company nor assets of Launch or any of its subsidiaries has constituted either a "distributing corporation" relating to or a "controlled corporation" in a distribution of stock qualifying attributable to Taxes, other than Liens for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerTaxes not yet due and payable.
Appears in 2 contracts
Samples: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries (to the extent any such subsidiaries are required to file tax returns on a basis other than as part of a consolidated group with Company) have timely filed (taking into account applicable extensions) all federal, material federal and state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its such subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company authority and each of its subsidiaries have paid all Taxes shown to be due on such Returns, when filed, were true and correct in all material respects.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any There is no material Tax deficiency outstanding, outstanding which has been proposed or assessed in writing against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iviii) No To the Company's knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, . Neither Company nor has the Company or any of its subsidiaries has been notified of any request for such an audit or other examination, except for any audit or other examination that would not be expected to have a Material Adverse Effect on Company.
(viv) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof, except for any adjustment that would not be expected to have a Material Adverse Effect on Company.
(viv) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business.
(viivi) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is Code as a party or by which it or any of its subsidiaries is bound as result of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of Merger and the Codeother transactions contemplated hereby.
(viiivii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ixviii) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementarrangement with an unaffiliated third party.
(ix) Company and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) The Company Disclosure Schedule lists (A) any material foreign Tax holidays, (B) any material intercompany transfer pricing agreements, or other arrangements that have been established by Company or any of its subsidiaries with any Tax authority and (C) any material expatriate programs or policies affecting Company or any of its subsidiaries.
(xii) Neither the Company nor any of its subsidiaries has constituted was either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section section 355 of the Code that (x) in the occurred within two years prior to before the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" plan or "series or related of transactions" (within the meaning of Section section 355(e) of the Code) in conjunction with that includes the Merger.
(xiii) None of the Company and its subsidiaries (A) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) or (B) has any material liability for the Taxes of any person (other than the Company and its subsidiaries) 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: Agreement and Plan of Reorganization (Sci Systems Inc), Agreement and Plan of Reorganization (Sanmina Corp/De)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"“Company Returns”) relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the CompanyCompany or which are for taxes being contested. The Such Company Returns are true and each of its subsidiaries correct in all material respects, have paid been completed in accordance with applicable law, and all Taxes shown to be due on such ReturnsCompany Returns have been paid. There are no liens for Taxes (other than Taxes not yet due and payable) upon any assets of the Company or any of its subsidiaries.
(ii) The Company and each of its subsidiaries as of the Effective Time Closing Date will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct (“FICA”), Taxes pursuant to the Federal Unemployment Tax Act (“FUTA”) and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Company Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Seller, the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Company Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unassertedTaxes, contingent or otherwise, which is could be deemed to be material to the CompanyCompany or its subsidiaries, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the latest financial statements of the Seller included in the Seller SEC Reports in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Seller is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's ’s or its subsidiaries' ’ assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any subsidiary of its subsidiaries the Company has constituted participated as either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Resonate Blends, Inc.), Stock Purchase Agreement (Resonate Blends, Inc.)
Tax Returns and Audits. (i) The Each of Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The All such Returns were correct and complete in all material respects. Each of Company and each of its subsidiaries have has paid all Taxes shown to be due on such Returns, or is contesting them in good faith. None of the Company and its subsidiaries currently is the beneficiary of any extension of time within which to file any Return.
(ii) The Except as is not material to the Company, each of the Company and each of its subsidiaries will have withheld as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are .
(iii) Except as is not material to the Company.
(iii) Neither , neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No Except as is not material to the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has have not been accrued for or reserved against on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any except liability for unpaid Taxes that may which have accrued since December 31June 30, 1999 in connection with the operation of the business of the Company and its subsidiaries 2002 in the ordinary coursecourse of business.
(vi) None of the Company's assets is treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not for which a deduction will be deductible pursuant to disallowed by reason of Sections 280G, 404 or 162(m162(b) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 through (o) of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its is subsidiaries.
(ix) Neither The Company is not, and has not been at any time, a "United States real property holding corporation" within the Company nor any meaning of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementSection 897(c)(2) of the Code.
(x) None of the Company's Company and its subsidiaries is a party to any tax allocation or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) sharing agreement. None of the Code.
(xi) Neither the Company nor any of and its subsidiaries (A) has constituted either been a "distributing corporation" or a "controlled corporation" in a distribution member of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" an Affiliated Group (within the meaning of Section 355(e1504(a) of the Code, or any similar group defined under a similar provision of state, local, or foreign law) in conjunction with filing a consolidated federal Return (other than a group the Mergercommon parent of which was the Company) or (B) has any liability for the taxes of any person (other than any of the Company and its subsidiaries) under Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Telaxis Communications Corp), Merger Agreement (P Com Inc)
Tax Returns and Audits. (i) The Company MM and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") Tax Returns relating to Taxes required to be filed by them in all the Company and each jurisdictions in which MM or any of its subsidiaries with any Tax authority(x) are qualified to do business and (y) they operate, except with respect to clause (y) as would not be reasonably expected to result in a MM Material Adverse Effect. Except as disclosed in Section 4.15 of the MM Disclosure Letter, such Tax Returns which are not true and correct in all material to the Company. The Company respects, have been completed in accordance with applicable Law, and each of its subsidiaries have paid all Taxes shown to be due on such Tax Returns have been paid. MM has delivered to the Company correct and complete copies of all Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by MM, any of its subsidiaries filed or received since December 31, 2010. There are no liens for Taxes (other than Taxes not yet due and payable) upon any assets of MM or any of its subsidiaries or, with respect to the Contributed Assets only, any of its Affiliates.
(ii) The Company MM and each of its subsidiaries as of the Effective Time will have withheld with respect to its their respective employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company MM nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company MM or any of its subsidiaries, nor has the Company MM or any of 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) No Except as disclosed in Section 4.15 of the MM Disclosure Letter, to the Knowledge of MM, no audit or other examination of any Tax Return of the Company MM or any of its subsidiaries by any Tax tax authority is presently in progress, . Neither MM nor has the Company or any of its subsidiaries has been notified in writing of any request for such an audit or other examination. MM and each of its subsidiaries have paid in full any demands raised by any tax authority as a result of any audit that has been previously conducted.
(v) No material adjustment relating to any Tax Returns filed by the Company MM or any of its subsidiaries has been proposed in writing formally or informally by any Tax tax authority to the Company MM or any of its subsidiaries or any representative Representative thereof.
(vi) Neither the Company MM nor any of its subsidiaries has any liability Liability for any material unpaid Taxes, whether or not such Taxes which has not have been accrued for or reserved on the Company Balance Sheet MM Financial Statements or the MM US GAAP Financials in accordance with GAAP, GAAP or whether or not asserted or unasserted, contingent or otherwise, except for Taxes not yet due and payable or which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 are being contested in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursegood faith.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Majesco), Agreement and Plan of Merger (Cover All Technologies Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed (taking into account applicable extensions) all federal, federal and state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which authority and are not true and correct in all material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due respects on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, outstanding which has been proposed or assessed in writing against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax other than the automatic extension arising from the filing of a Return after its due date.
(iv) No To Company's knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, . Neither Company nor has the Company or any of its subsidiaries has been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ix) Neither the Except for any such agreement or arrangement solely between Company and its subsidiaries, neither Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) Company and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Neither the The Company nor Disclosure Letter lists (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by Company or any of its subsidiaries has constituted either a "distributing corporation" with any Tax authority and (C) any expatriate programs or a "controlled corporation" in a distribution policies affecting Company or any of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerits subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Triquint Semiconductor Inc), Agreement and Plan of Reorganization (Sawtek Inc \Fl\)
Tax Returns and Audits. Except as set forth in Section 2.16(b) of the Company Schedule:
(i) The Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes ("Returns ") required to be filed by the Company and each of its subsidiaries with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the Company. The All such Returns are true, correct and complete in all material respects. Company and each of its subsidiaries have has paid all Taxes shown to be due on such Returns.
(ii) The All Taxes that Company is required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither Company has not been delinquent in the Company payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any no liability for any material unpaid Taxes which has have not been accrued for or reserved on Company's balance sheet included in Company's report on Form 10-Q for the Company Balance Sheet in accordance with GAAPquarter ended September 30, 1999, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31September 30, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business, none of which is material to the business, results of operations or financial condition of Company.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would could reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the CodeCode (or any similar provision of state or local law). There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as that could require the compensation of the date of this Agreement to compensate any individual for excise taxes paid payable pursuant to Section 4999 of the CodeCode (or any similar provision of state or local law).
(viii) Neither the Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code (or any similar provision of state or local law) or agreed to have Section 341(f)(2) of the Code (or any similar provision of state or local law) apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the CodeCode (or any similar provision of state or local law)) owned by the Company or any of its subsidiariesCompany.
(ix) Neither the Company nor is not party to, and has no obligation under, any of its subsidiaries is party to or has any obligation under any tax-tax sharing, tax indemnity or indemnity, tax allocation or similar agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are is tax exempt use property within the meaning of Section 168(h) of the CodeCode (or any similar provision of state or local law).
(xi) Neither Company has not distributed the Company nor stock of any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" corporation in a distribution transaction satisfying the requirements of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date Code. The stock of this Agreement or (y) Company has not been distributed in a distribution which could otherwise constitute part transaction satisfying the requirements of Section 355 of the Code.
(xii) Company is not, and has not been a "planUnited States real property holding corporation" or "series or related transactions" (within the meaning of Section 355(e897(c)(2) of the Code.
(xiii) No power of attorney has been granted by Company and is currently in conjunction with effect.
(xiv) Company has not taken any action and does not know of any fact, agreement, plan or other circumstance that is reasonably likely to prevent the MergerMerger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Mail Com Inc), Merger Agreement (Mail Com Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have (a) timely filed or caused to be filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to material Taxes required to be filed by the Company and each or any of its subsidiaries with any Tax authoritySubsidiaries, except and such Returns are true, correct, and complete and have been completed in accordance with applicable Legal Requirements in all material respects and (b) timely paid or withheld (and timely paid over any withheld amounts to the appropriate Governmental Entity) all Taxes required to be paid or withheld whether or not shown as due on any Return, other than Taxes (i) for which payment is not yet due or (ii) which are not material to being challenged in good faith by appropriate means, promptly instituted and diligently pursued, and for which an adequate reserve has been accrued or established on the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such ReturnsFinancials.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries Subsidiaries has any material Tax deficiency outstanding, assessed or proposed or assessed in writing against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iviii) No audit or other examination of any Return of the Company or any of its subsidiaries by Subsidiaries relating to any material Tax authority is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(viv) No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereofthereof that remains unpaid.
(viv) Neither the Company nor any of its subsidiaries Subsidiaries has any liability constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock within the past three years intended to qualify for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation tax-free treatment under Section 355 of the business of the Company and its subsidiaries in the ordinary courseCode.
(viivi) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee None of the Company or any of its subsidiaries thatSubsidiaries has engaged in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has identified by notice, individually regulation, or collectivelyother form of published guidance as a listed transaction, would reasonably be expected to give rise to the payment as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(vii) The Company and its Subsidiaries are in compliance in all material respects with all terms and conditions of any amount that would not be deductible pursuant to Sections 280Gmaterial Tax exemption, 404 Tax holiday or 162(m) other Tax reduction agreement or order of a territorial or non-U.S. government, and the consummation of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or transactions contemplated by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate will not have any individual for excise taxes paid pursuant to Section 4999 adverse effect on the continued validity and effectiveness of the Codeany such Tax exemption, Tax holiday or other Tax reduction agreement or order.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed any consent agreement under Section 341(f) material liability for unpaid Taxes arising from or relating to any period ending on or prior to the close of business on the date of the Code Company Financials which has not been accrued or agreed reserved on the particular Company Financials for the period to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by which such liabilities arises from or relates, whether asserted or unasserted, contingent or otherwise, and neither the Company or nor any of its subsidiariesSubsidiaries has incurred any liability for Taxes since the date of the Company Balance Sheet other than in the ordinary course of business consistent with past practice.
(ix) Neither the Company nor any of its subsidiaries is Subsidiaries (a) has ever been a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) has ever been a party to any Tax sharing, indemnification or allocation agreement, (c) 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 including any arrangement for group or consortium Tax relief or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise, (d) has an obligation under to make any tax-sharingpayment determined by reference to the Tax liability of a third party, tax indemnity or tax allocation agreement (e) is presently a party to any joint venture or arrangementpartnership in respect of which there exists a negative capital account or any other circumstance giving rise to a deferred Tax liability materially in excess of reserves set forth on the Company Financials.
(x) None Neither the Company nor its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from taxable income as a result of the Company's or its subsidiaries' assets are tax exempt use property within the meaning any (a) change in method of accounting under Section 168(h481(c) of the Code.
, (xib) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment closing agreement under Section 355 7121 of the Code, (c) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code materially in excess of specifically identified reserves as indicated on the Company Financials (x) or in the two years prior to the date case of this Agreement each of (a), (b) and (c)), under any similar provision of applicable law), or (yd) installment sale or open transaction disposition or prepaid amount materially in a distribution which could otherwise constitute part excess of a "plan" or "series or related transactions" (within reserves set forth on the meaning of Section 355(e) of the Code) in conjunction with the MergerCompany Financials.
Appears in 2 contracts
Samples: Merger Agreement (Seebeyond Technology Corp), Merger Agreement (Sun Microsystems, Inc.)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. All such Returns were correct and complete in all material respects and have been completed in accordance with applicable law. The Company and each of its subsidiaries have has paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries Company, as of the Effective Time Time, will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the The Company nor any of its subsidiaries has does not have any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the The Company nor any of its subsidiaries has does not have any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There Except as set forth in Section 2.7(b)(vii) of the Company Schedules, there is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the The Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ix) Neither The Company (A) has never been a member of an affiliated group filing a consolidated federal income Tax Return (other than a consolidated group the common parent of which is the Company nor any of its subsidiaries or is Healthdyne, Inc.), (B) is not a party to any Tax sharing or has Tax allocation agreement, arrangement or understanding, (C) to the Company's knowledge, is not liable for the Taxes of any obligation other person under Treas. Reg. Section 1.1502-6 (or any tax-sharingsimilar provision of state, tax indemnity local or tax allocation agreement foreign law), as a transferee or arrangementsuccessor, by contract or otherwise and (D) is not a party to any joint venture, partnership or other arrangement that could be treated as a partnership for income Tax purposes.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the The Company nor any of its subsidiaries has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (xA) in the two years prior to the date of this Agreement or (yB) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Healthcare Com Corp), Merger Agreement (Xcarenet Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed in writing (or otherwise, to the Company's knowledge, proposed) or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing (or otherwise, to the Company's knowledge, notified) of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this AgreementAgreement (excluding the effect, if any, of the provisions of Section 5.12 hereof), including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) Except as may be required as a result of the Merger, the Company and its subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Neither Part 2.7 of the Company nor Schedules lists (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by the Company or any of its subsidiaries with any Tax authority and (C) any expatriate programs or policies affecting the Company or any of its subsidiaries.
(xiii) The Company is not, and has constituted either not been at any time, a "distributing United States real property holding corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e897(c)(2) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Healtheon Corp), Agreement and Plan of Reorganization (Healtheon Corp)
Tax Returns and Audits. (i) The As of the Closing Date, the Company and each of its subsidiaries have timely Subsidiaries has filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries Subsidiaries with any Tax authorityauthority prior to the date hereof. To the Company’s Knowledge, except all such Returns which are not true, correct and complete in all material to respects. As of the Company. The Closing Date, the Company and each of its subsidiaries have Subsidiaries has paid all Taxes shown to be due on such Returns. The Company is not a “United States real property holding corporation,” as defined in section 897 of the Internal Revenue Code of 1986, as amended, and Section 1.897-2(b) of the regulations promulgated thereunder.
(ii) The As of the Closing Date, all material Taxes that the Company and each or any of its subsidiaries as of the Effective Time will Subsidiaries is required by law to withhold or collect have been duly withheld with respect to its employees all federal or collected, and state income taxes, Taxes pursuant have been paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither As of the Closing Date, none of the Company nor or any of its subsidiaries has Subsidiaries will be delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, assessed or, to the Knowledge of the Company, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has will the Company or any of its subsidiaries Subsidiaries have executed any unexpired waiver of any statute of limitations on extending or extending waiving the period for the assessment or collection of any Tax.
(iv) No To the Company’s Knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries Subsidiaries by any Tax authority is presently in progress, nor has . Neither the Company or nor any of its subsidiaries Subsidiaries has been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative of the officers and directors thereof.
(vi) Neither As of the Closing Date, neither the Company nor any of its subsidiaries Subsidiaries has any liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Companywould constitute a Company Material Adverse Effect, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries Subsidiaries in the ordinary coursecourse of business.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Key Hospitality Acquisition CORP), Merger Agreement (Key Hospitality Acquisition CORP)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, forms, estimates, information statements and reports ("RETURNS"“Returns”) relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not not, individually or in the aggregate, material to the CompanyCompany (“Company Returns”). The Company and each of its subsidiaries have paid all Taxes shown to be due on such Company Returns. All Company Returns were complete and accurate in all material respects and have been prepared in substantial compliance with all applicable Legal Requirements. The Company’s net operating losses and other Tax attributes are accurately reflected on the Company Returns and, to the knowledge of the Company, are not currently subject to any limitation under Sections 382 or 383 of the Code. The Company has made available to Parent correct and complete copies of all Company Returns, examination reports, closing agreements and statements of deficiencies assessed against or agreed to by the Company or any of its subsidiaries.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has is delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extension of any the period for the assessment or collection of any Tax.
(iviii) No audit, or pending audit of, or other examination of any Company Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(viv) No material adjustment relating to any Company Returns filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(viv) Neither the Company nor any of its subsidiaries has any liability Liability for any material unpaid Taxes (whether or not shown to be due on any Company Return) which has not been accrued for or reserved on the Company Company’s Interim Balance Sheet in accordance with GAAP, whether asserted or unasserted, whether or not shown on any Company Return, contingent or otherwise, which is material to the Company, other than any liability Liability for unpaid Taxes that may have accrued since December 31, 1999 the Interim Balance Sheet Date in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no claims for Taxes being asserted against the Company or any of its subsidiaries that have resulted in, and there are no, Encumbrances with respect to Taxes on any of the assets of the Company or any of its subsidiaries, other than Encumbrances which are not, individually or in the aggregate, material, or customary Encumbrances for Taxes not yet due and payable.
(viivi) There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries Employee (other than a Consultant who is not a Significant Consultant) that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code or that would give rise to a penalty under Section 409A of the Code. There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes Taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ixvii) Neither the Company nor any of its subsidiaries is party to or has any obligation under any taxTax-sharing, tax Tax indemnity or tax Tax allocation agreement or arrangement, nor does the Company or any of its subsidiaries have any Liability or potential Liability to another party under any such agreement or arrangement. Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated, unitary, combined or similar Return (other than such Company Returns which include only the Company and any of its subsidiaries) under any federal, state, local or foreign law. Neither the Company nor any of its subsidiaries is party to any joint venture, partnership or other arrangement that could be treated as a partnership for federal and applicable state, local or foreign Tax purposes.
(xviii) None of the Company's ’s or its subsidiaries' ’ assets are tax Tax exempt use property within the meaning of Section 168(h) of the Code.
(xiix) Neither the Company nor any of its subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with the MergerTransactions.
(x) Neither the Company nor any of its subsidiaries has consummated, has participated in, or is currently participating in any transaction which was or is a “Tax shelter,” “listed transaction” or “reportable transaction” as defined in Sections 6662, 6662A, 6011, 6012, 6111 or 6707A of the Code or the Treasury Regulations promulgated thereunder, including, but not limited to, transactions identified by the IRS by notice, regulation or other form of published guidance as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) Each of the Company and each of its subsidiaries has in its possession official foreign government receipts for any Taxes paid by it to any foreign Tax authorities.
(xii) The Company has made available to the Parent all documentation relating to any Tax holidays or incentives applicable to itself or its subsidiaries. The Company and its subsidiaries are in compliance with the requirements for any such Tax holidays or incentives.
(xiii) Neither the Company nor any of its subsidiaries is or has ever been a “United States real property holding corporation” within the meaning of Section 897 of the Code.
(xiv) The Company and each of its subsidiaries has complied (and until the Effective Time will comply) in all material respects with all applicable Legal Requirements relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445 and 1446 of the Code or similar provisions under any foreign law), has, in all material respects within the time and in the manner prescribed by law, withheld from the wages or compensation of Employees (other than Consultants) and paid over to the proper Governmental Entities (or is properly holding for such timely payment) all amounts required to be so withheld and paid over under all applicable Legal Requirements, including federal and state income Taxes, Federal Insurance Contribution Act, Medicare Federal Unemployment Tax Act, relevant state income and employment Tax withholding laws, and has in all material respects timely filed all withholding Returns required to be filed.
Appears in 2 contracts
Samples: Merger Agreement (Genentech Inc), Merger Agreement (Tanox Inc)
Tax Returns and Audits. (i) The Company Purchaser and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes Tax Returns required to be filed by the Company Purchaser and each of its subsidiaries with any Tax authorityauthority since January 1, 1995, except such Tax Returns which are not material to the Company. The Company Purchaser, and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Returns on a timely basis. There is no Tax deficiency outstanding, proposed in writing (or otherwise to Purchaser's knowledge proposed) or assessed against the Company Purchaser or any of its subsidiaries, nor has the Company Purchaser or any of 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) . No audit or other examination of any Tax Return of the Company Purchaser or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Purchaser or any of its subsidiaries been notified in writing (or otherwise to Purchaser's knowledge notified) of any request for such an audit or other examination.
(v) . No material adjustment relating to any Tax Returns filed by the Company Purchaser or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Purchaser or any of its subsidiaries or any representative thereof.
(vi) subsidiaries. Neither the Company Purchaser nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPGAAP on Purchaser's financial statements (or in any Purchaser SEC Report filed prior to the date hereof, or for liabilities accruing following the date hereof, in any Purchaser SEC Report filed prior to the date of the Closing), whether asserted or unasserted, contingent or otherwise, which is material to the CompanyPurchaser, other than any liability for unpaid Taxes that may have accrued since December 31January 1, 1999 1995 in connection with the operation of the business of the Company Purchaser and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company Purchaser nor any of its subsidiaries is party to to, or has any obligation under under, or will have any obligation as a result of the transactions contemplated hereby under, any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) . Neither the Company Purchaser nor any of its subsidiaries has constituted either is a "distributing corporation" party to (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or a "controlled corporation" in a distribution other arrangement that have been established by Purchaser or any of stock qualifying for tax-free treatment under Section 355 its subsidiaries with any Tax authority and (C) any expatriate programs or policies affecting Purchaser or any of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerits subsidiaries.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Starbase Corp), Asset Purchase Agreement (Site Technologies Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company , and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its material subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its material subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its material subsidiaries, nor has the Company or any of its material subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its material subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its material subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its material subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its material subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ix) Neither the Company nor any of its material subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) Except as may be required as a result of the Merger, Company and its material subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Network Associates Inc), Agreement and Plan of Reorganization (Network General Corporation)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The Company , and each of its subsidiaries have timely paid all Taxes shown to be due on such Returns.
(ii) The . Except as is not material to the Company, the Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the its employees' share of Federal Insurance Contribution ActAct ("FICA") taxes, Taxes pursuant to the Federal Unemployment Tax Act and other any Taxes required to be withheld, except such Taxes which are . Except as is not material to the Company.
(iii) Neither , to the Company nor any of its subsidiaries has any material Company's knowledge, there is no Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No . Except as is not material to the Company, to the Company's knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No . Except as is not material to the Company, no adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither . Except as is not material to the Company, neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet or disclosed in accordance with GAAPrelated notes to the Company Financials, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) . There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Company. Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity sharing or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.. 10
Appears in 2 contracts
Samples: Merger Agreement (Golden Gate Acquisitions Inc), Merger Agreement (MDL Information Systems Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports and any amendments thereto ("RETURNS"“Tax Returns”) relating to any and all Taxes required concerning or attributable to be filed by the Company Company, its Subsidiaries or their respective operations. Such Tax Returns are true and each of its subsidiaries correct, and have been completed in accordance with any Tax authorityapplicable law and were timely filed, except such Returns which are in each case as would not be material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will Subsidiaries have paid all Taxes required to be paid and withheld with respect to its employees all federal their Employees or other third parties and state income taxes, Taxes pursuant paid over to the Federal Insurance Contribution Act, appropriate Taxing authority all Taxes pursuant to the Federal Unemployment Tax Act and any other Taxes amounts required to be paid or withheld, . Such Taxes were timely paid except such Taxes which are as would not be material to the Company.
(iii) Neither the Company nor any of its subsidiaries has Subsidiaries is currently delinquent in the payment of any Tax, nor is there any material Tax deficiency outstanding, assessed or, to the Knowledge of the Company, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired outstanding waiver of any statute of limitations on or extending extension of the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified of any request for such an audit or other examination.
(v) . No material outstanding adjustment relating to any Returns Tax Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority or, to the Knowledge of the Company or any of its subsidiaries Subsidiaries, informally by any tax authority to the Company, any of its Subsidiaries or any representative thereof.
(viv) Neither the Company nor any of its subsidiaries Subsidiaries has any liability liabilities for any material unpaid Taxes as of the date of the Company Balance Sheet which has have not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to and neither the Company, other than Company nor any of its Subsidiaries has incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business date of the Company and its subsidiaries Balance Sheet other than in the ordinary coursecourse of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all federal and California income and all other material Tax Returns for the Company and each of its Subsidiaries filed for all periods since inception.
(vii) There is are no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company or any of its subsidiaries thatSubsidiaries relating to or attributable to Taxes, individually other than customary Liens for Taxes not yet due and payable. To the Knowledge of the Company, there is no basis for the assertion of any material claim relating or collectivelyattributable to Taxes which, if adversely determined, would reasonably be expected to give rise to result in any Lien for Taxes on the payment assets of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeSubsidiaries.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesSubsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or Subsidiaries is, nor has been at any obligation under any tax-sharingtime, tax indemnity or tax allocation agreement or arrangementa “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(x) None Neither the Company nor any of the Company's or its subsidiaries' assets are tax exempt use property Subsidiaries (a) has ever been a member of an affiliated group (within the meaning of Section 168(hCode §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) is a party to any Tax sharing, indemnification or allocation agreement (other than between the CodeCompany and any of its Subsidiaries), nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (c) has any material liability for the Taxes of any person (other than Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise, or (d) is a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xi) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (xa) in the two years prior to the date of this Agreement or (yb) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with the Company Merger.
(xii) Neither the Company nor any of its Affiliates has taken or agreed to take any action that would prevent the Company Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. The Company has no Knowledge of any agreement, plan, fact or other circumstance that would prevent the Company Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Palm Inc), Merger Agreement (Palm Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.10, as of the Effective Time:
(i) The Company Zap Santa Xxxx has prepared and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports required to be filed ("RETURNSReturns") relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company Zap Santa Xxxx: (a) has paid or accrued all Taxes it is required to pay or accrue; and each of its subsidiaries as of the Effective Time will have (b) has withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Companywithheld as of that date.
(iii) Neither Zap Santa Xxxx has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesZap Santa Xxxx, nor has the Company or any of its subsidiaries Zap Santa Xxxx executed any unexpired waiver of any statute of limitations on or extending extended the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries Zap Santa Xxxx by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries Zap Santa Xxxx been notified of any request for such an audit or other examination.
(v) Zap Santa Xxxx has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of the Company.
(vi) No material adjustment or deficiency relating to any Returns Return filed or required to be filed by the Company or any of its subsidiaries Zap Santa Xxxx has been proposed in writing formally or or, to the knowledge of Zap Santa Xxxx, informally by any Tax authority to the Company or any of its subsidiaries Zap Santa Xxxx or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Zapworld Com), Agreement and Plan of Reorganization (Zapworld Com)
Tax Returns and Audits. (ia) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") and/or extensions relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(iib) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iiic) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivd) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(ve) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vif) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December March 31, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(viig) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiih) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ixi) Neither the Company nor any of its subsidiaries is party to or has any obligation under any taxTax-sharing, tax Tax indemnity or tax Tax allocation agreement or arrangement.
(xj) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xik) Neither Company has (a) never been a member of an affiliated group (within the meaning of Code ss. 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) with respect to the Taxes of any person (other than Company nor or any of its subsidiaries subsidiaries) (i) no liability under Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local or foreign law) and (ii) no material liability as a transferee or successor and (c) never been a party to any joint venture, partnership or other agreement that should be treated as a partnership for Tax purposes.
(l) Company has constituted not been either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Homegrocer Com Inc), Agreement and Plan of Reorganization (Homegrocer Com Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, forms, estimates, information statements and reports ("RETURNS"“Returns”) relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority. Such Returns are true, except such Returns which are not correct and complete in all material to the Companyrespects. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees and paid all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheldwithheld and paid in connection with amounts paid and owing to any employee, except such Taxes which are not material to the Companyindependent contractor, creditor, stockholder or other third party (whether domestic or foreign).
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extension of any the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination. The Company has delivered or made available to Parent true and complete copies of income Returns of the Company and its subsidiaries for the years ended June 30, 2001, 2002, 2003 and 2004, and true and complete copies of all examination reports and statements of deficiencies assessed against or agreed to by any of the Company and its subsidiaries or any predecessor, with respect to income Taxes. No written claim has ever been made by a Tax authority in a jurisdiction where the Company or any of its subsidiaries do not file Returns that any of the Company or its subsidiaries is or may be subject to a Tax liability in that jurisdiction.
(v) No material adjustment relating to any Returns filed or required to be filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any material liability for any material unpaid Taxes (whether or not shown to be due on any Return) which has not been accrued for or reserved on the Company Company’s Interim Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the Interim Balance Sheet Date in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no Liens with respect to Taxes on any of the assets of the Company or any of its subsidiaries, other than customary Liens for Taxes not yet due and payable.
(vii) There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the CodeIRC. There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeIRC.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement. Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated, unitary, combined or similar Return (other than Returns which include only the Company and any of its subsidiaries) under any federal, state, local or foreign law. Neither the Company nor any of its subsidiaries has any liability for Taxes of any Person other than the Company and its subsidiaries (i) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (ii) as a transferee or successor, (iii) by contract, or (iv) otherwise. Neither the Company nor any of its subsidiaries is party to any joint venture, partnership or other arrangement that could be treated as a partnership for federal and applicable state, local or foreign Tax purposes.
(xix) None of the Company's ’s or its subsidiaries' ’ assets are tax exempt use property within the meaning of Section 168(h) of the CodeIRC. Neither the Company nor any of its subsidiaries has agreed, or is or was required, to make any adjustment under Section 481(a) of the IRC by reason of a change in accounting method or otherwise (or by reason of any similar provision of state, local or foreign law).
(xix) Neither the Company nor any of its subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code IRC (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the CodeIRC) in conjunction with the MergerTransactions.
(xi) Neither the Company nor any of its subsidiaries has been a party to a “reportable transaction,” as such term is defined in Treasury Regulations Section 1.6011-4(b)(1) or to a transaction that is or is substantially similar to a “listed transaction,” as such term is defined in Treasury Regulations Section 1.6011-4(b)(2), or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax Legal Requirement. The Company and its subsidiaries have 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 IRC.
(xii) Section 2.14(b) of the Company Schedule contains the names of each Company Employee who has made, to the Knowledge of the Company, an election under Section 83(b) of the IRC with respect to the purchase of Company stock subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company.
Appears in 2 contracts
Samples: Merger Agreement (Sybase Inc), Merger Agreement (Sybase Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto, to Company's knowledge:
(i) The Company and each of its subsidiaries Subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries them with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the CompanyCompany or its Subsidiaries. All such Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries Subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The All Taxes that the Company or its Subsidiaries is required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Company and its Subsidiaries have not been delinquent in the Company payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesthem, nor has the Company or any of its subsidiaries have they executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereof.
(vi) Neither the The Company nor any of and its subsidiaries has any Subsidiaries have no liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s consolidated balance sheets included in accordance with GAAPthe audited financial statements for the most recent fiscal year ended, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business, none of which is material to the business, results of operations or financial condition of the Company.
(vii) There is no contractThe Company and its Subsidiaries have not taken any action and does not know of any fact, agreement, plan or arrangement other circumstance that is reasonably likely to which prevent the Company or any of its subsidiaries is Transaction from qualifying as a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property reorganization within the meaning of Section 168(h368(a) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Multi Link Telecommunications Inc), Merger Agreement (Cab-Tive Advertising, Inc.)
Tax Returns and Audits. Except as set forth in Schedule 2.18 hereto:
(i) Throughout its existence, the Company has been a partnership and not been treated as a corporation or association for federal income tax purposes under Treasury Regulations Section 301.7701-2.
(ii) The Company Company, and each of its subsidiaries have the Subsidiary, as applicable, has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries Subsidiary with any Tax authorityauthority prior to the date hereof. To Seller’s knowledge, except all such Returns which are not true, correct and complete in all material to the Companyrespects. The Company and each of its subsidiaries have Subsidiary has paid all Taxes shown to be due on such Returns.
(iiiii) The All Taxes that the Company and each of its subsidiaries as of the Effective Time will Subsidiary are required by law to withhold or collect have been duly withheld with respect to its employees all federal or collected, and state income taxes, Taxes pursuant have been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iiiiv) Neither the Company nor its Subsidiary have been delinquent in the payment of any of its subsidiaries has material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiary, nor has the Company or any of its subsidiaries Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivv) Schedule 2.18 lists all Returns that have been audited by any Taxing Authority. All deficiencies asserted by any Taxing Authority arising from audits have been paid in full. Sellers have delivered to Buyer correct and complete copies of all correspondence, examination reports, statements of deficiency, notices of proposed adjustment, and all responses thereto, relating to any audit. No adjustment relating to any Returns filed by the Company or its Subsidiary have been proposed in writing, formally or informally, by any Tax authority to the Company, its Subsidiary or any representative thereof. To Sellers’ knowledge, no audit or other examination of any Return of the Company or any of its subsidiaries Subsidiary by any Tax authority is presently in progress, nor . The Company and its Subsidiary has the Company or any of its subsidiaries not been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries Subsidiary has any liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and or its subsidiaries Subsidiary in the ordinary coursecourse of business.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Union Street Acquisition Corp.), Membership Interest Purchase Agreement (Union Street Acquisition Corp.)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have timely filed prepared and filed, or joined in the filing of, when due (taking into account all federalapplicable extensions of time to file), state, local all material required Tax Returns and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries such Tax Returns have been completed in accordance with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnsapplicable law.
(ii) The All material Taxes due and owing by the Company and each or any of its subsidiaries Subsidiaries or to which the Company or any of its Subsidiaries are liable under Treasury Regulations section 1.1502-6 by virtue of having been a member of an “affiliated group” (within the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as amended (“Code”)) of which the Seller is the common parent, have been paid as of the Effective Time will Closing Date, or have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to been accrued or reserved as set forth on Sections 1.3(c) or 1.3(d) of the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the CompanySeller Disclosure Letter.
(iii) Neither the Company nor any of its subsidiaries Subsidiaries has any material Tax deficiency outstanding, proposed or assessed against liability for such Taxes as of the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return date of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes Balance Sheet which has were not been appropriately accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted and neither the Company nor any of its Subsidiaries has incurred or unasserted, contingent or otherwise, which is will incur any material to the Company, other than any liability for unpaid such Taxes that may have accrued since December 31, 1999 in connection with after the operation of the business date of the Company and its subsidiaries Balance Sheet through the Closing Date other than in the ordinary coursecourse of business.
(viiiv) There is no contractEach material audit or other examination relating to Taxes of, agreementor any Tax Return filed by or on behalf of, plan the Company or arrangement to any of its Subsidiaries which began after January 1, 2001 (whether completed or in progress or of which the Company or any of its subsidiaries is a party as Subsidiaries have been notified); each adjustment relating to any material Tax Return filed by the Company or any of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee its Subsidiaries (or former employee on behalf of the Company or any of its subsidiaries Subsidiaries to the extent such adjustment relates to the Company or any of its Subsidiaries) that has been proposed in writing by any Tax authority to Seller, the Company or any of its Subsidiaries; and each outstanding waiver of any statute of limitations on or outstanding extension of the period for the assessment or collection of any Tax, and each assessment for Taxes of the Company or any of its Subsidiaries which currently remains unpaid, is set forth in the Seller Disclosure Letter.
(v) Neither the Company nor any of the Subsidiaries (A) have any liability for the Taxes of another Person (other than any member of the consolidated group of which the Seller is the common parent) under Treasury Regulations section 1.1502-6 (or any similar provision of applicable state, local or foreign law), as a transferee or successor, by Contract or otherwise; (B) 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 (1) change in method of accounting for a taxable period ending on or prior to the Closing Date, (2) “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, (3) intercompany transactions or excess loss account described in the Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law), (4) installment sale or open transaction disposition made on or prior to the Closing Date, (5) item having been reported on the completed contract method of accounting or the percentage of completion method of accounting, (6) prepaid amount received on or prior to the Closing Date, or (7) other action taken prior to the Closing Date; or (C) 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 or Section 361 of the Code.
(vi) There is no contract, plan or arrangement that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280Gby the Company, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party Subsidiaries or Purchaser (or affiliates of Purchaser) by which it or any reason of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 280G of the Code.
(viiivii) Neither Since January 1, 1998, Seller has been, and currently is, the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) common parent of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" affiliated group (within the meaning of Section 355(e) 1504 of the Code) in conjunction with of which the MergerCompany and each Subsidiary that is organized within the United States are members.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Science Applications International Corp), Stock Purchase Agreement (Science Applications International Corp)
Tax Returns and Audits. (i) The Company Launch and each of its subsidiaries have timely filed all material federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company or on behalf of Launch and each of its subsidiaries with any Tax authority, except such Returns which are not true, correct and complete in all material to the Company. The Company respects, and Launch and each of its subsidiaries have paid (where required by law or otherwise accrued) all Taxes shown to be due on such Returns.
(ii) The Company Launch and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any There is no material Tax deficiency outstanding, proposed or assessed against the Company Launch or any of its subsidiaries, nor has the Company Launch or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax that is still in effect.
(iv) No audit or other examination of any Return of the Company Launch or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Launch or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment of Tax relating to any Returns filed by the Company Launch or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Launch or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Launch nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Launch Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyLaunch, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Launch Balance Sheet in connection with the operation of the business of the Company Launch and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Launch is a party as of the date of this Agreementparty, including but not limited to the provisions of this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of the Company Launch or any of its subsidiaries that, individually or collectively, would be reasonably be expected likely to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company Launch nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesLaunch.
(ix) Neither the Company Launch nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None . Since April 16, 1997, neither Launch nor any of the Company's its subsidiaries has been a distributing corporation or its subsidiaries' assets are tax exempt use property within the meaning of a controlled corporation in a transaction described in Section 168(h355(a) of the Code.
(x) Except as may be required as a result of the Merger, Launch and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) Neither Launch has made available to Yahoo! or its legal or accounting representatives copies of all foreign, federal and state income tax and all state sales and use tax Returns for Launch and each of its subsidiaries filed for all periods since its inception.
(xii) There are no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LIENS") on the Company nor assets of Launch or any of its subsidiaries has constituted either a "distributing corporation" relating to or a "controlled corporation" in a distribution of stock qualifying attributable to Taxes, other than Liens for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerTaxes not yet due and payable.
Appears in 2 contracts
Samples: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media Inc)
Tax Returns and Audits. (i) The Each of the Company and each of its subsidiaries have Company Subsidiary (A) has properly completed and timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes material Tax Returns required to be filed by it (taking into account applicable extensions) in the manner prescribed by applicable Law and all such Tax Returns are true, complete and correct in all material respects; and (B) has timely paid in full all material Taxes due and owing by the Company and each of its subsidiaries the Company Subsidiaries. Neither the Company nor any Company Subsidiary has executed any written waiver, except in connection with any ongoing Tax authorityexamination, except such Returns which are of any statute of limitations on, or extended the period for, the assessment or collection of, any material Tax, in each case that has not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnssince expired.
(ii) The Company There is no Legal Proceeding currently pending and each of its subsidiaries as served or, to the Knowledge of the Effective Time will have withheld with Company, threatened against the Company or any Company Subsidiary in respect of any material Tax or material Tax asset, except as would not, individually or in the aggregate, reasonably be expected to its employees all federal and state income taxes, Taxes pursuant result in a material liability to the Federal Insurance Contribution Act, Company or any of the Company Subsidiaries. No written claim has been made by a Governmental Authority in a jurisdiction where the Company or any Company Subsidiary does not file Tax Returns alleging that the Company or such Company Subsidiary is or may be subject to taxation by that jurisdiction. There are no Liens for Taxes pursuant to on any of the Federal Unemployment Tax Act and assets or properties of the Company or the Company Subsidiaries other Taxes required to be withheld, except such Taxes which are not material to the Companythan Permitted Liens.
(iii) Neither the Company nor any of its subsidiaries Company Subsidiary has received any written notification from the IRS or any other Governmental Authority regarding any Tax issues that (A) are currently pending before the IRS or any other Governmental Authority regarding the Company or any Company Subsidiaries, or (B) have been raised in writing by the IRS or any other Governmental Authority and not yet finally resolved, except in each case as would not, individually or in the aggregate, reasonably be expected to result in a material Tax deficiency outstanding, proposed or assessed against liability to the Company or any of its subsidiaries, nor has the Company or any of 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) Subsidiaries. No audit or other examination of any Tax Return of the Company or any Company Subsidiary is under audit by the IRS or any other Governmental Authority, and any such past audits (if any) have been completed and fully resolved to the satisfaction of its subsidiaries the applicable Governmental Authority conducting such audit, and all Taxes determined by any Tax authority is presently in progress, nor has such audit to be due from the Company or any Company Subsidiary have been paid in full to the applicable Governmental Authority. Since January 1, 2016, neither the Company nor any Company Subsidiary has submitted or received any formal and binding letter ruling from the IRS or any comparable formal and binding written ruling from any other Governmental Authority.
(iv) The Company has established an adequate accrual or reserve for all liabilities from Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) in accordance with GAAP, in respect of its subsidiaries been notified the periods or portions thereof prior to December 31, 2016, which accrual or reserve as of December 31, 2016 is fully reflected on the Company Financial Statements. Since December 31, 2016, the Company has not incurred any request liability for such an audit Taxes arising from extraordinary gains or other examinationlosses, as that term is used in GAAP, outside the ordinary course of business consistent with past custom and practice.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any Company Subsidiary will be required to include any item of its subsidiaries has income in, or exclude any liability item of deduction from, taxable income in excess of the amount of net operating loss carryovers that are usable after the Closing, for any material unpaid Taxes which has not been accrued for taxable period (or reserved on portion thereof) ending after the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Closing Date as a result of: (A) the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning application of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 481 of the Code (xor corresponding or similar provisions of state or foreign Tax laws) in the two years to transactions, events or accounting methods employed prior to the date Closing, (B) any “closing agreement,” as described in Section 7121 of this Agreement the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date, or (yC) in a distribution which could otherwise constitute part of a "plan" any installment sale or "series open transaction made on or related transactions" (within prior to the meaning of Section 355(e) of the Code) in conjunction with the MergerClosing date.
Appears in 2 contracts
Samples: Credit Agreement (RhythmOne PLC), Agreement and Plan of Merger and Reorganization (YuMe Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not not, individually or in the aggregate, material to the Company. The Company and each of its subsidiaries have paid all Taxes shown required to be due on paid, except such ReturnsTaxes which are not, individually or in the aggregate, material to Company.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all employees, independent contractors or other persons all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not not, individually or in the aggregate, material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing proposed, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet balance sheet dated September 30, 1999 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31October 1, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no liens with respect to Taxes on any of the assets of Company, other than liens which are not, individually or in the aggregate, material or customary liens for current Taxes not yet due and payable.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would could reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries (A) has ever been a member of a consolidated group other than a consolidated group of which Company is the parent corporation or (B) is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" distributed the stock of any corporation in a distribution transaction satisfying the requirements of stock qualifying for tax-free treatment under Section 355 of the Code since April 16, 1997. The stock of neither Company nor any of its subsidiaries has been distributed in a transaction satisfying the requirements of Section 355 of the Code since April 16, 1997.
(xxii) in Neither Company nor any of its subsidiaries owns any property, the two years prior indirect transfer of which pursuant to the date of this Agreement would give rise to any documentary, stamp or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerother transfer Tax.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Informix Corp), Agreement and Plan of Reorganization (Informix Corp)
Tax Returns and Audits. (i) The Company Parent and each of its subsidiaries (to the extent any such subsidiaries are required to file tax returns on a basis other than as part of a consolidated group with Parent) have timely filed (taking into account applicable extensions) all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") material Returns relating to Taxes required to be filed by the Company Parent and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company authority and each of its subsidiaries have paid all Taxes shown to be due on such Returns, when filed, were true and correct in all material respects.
(ii) The Company and each There is no Tax deficiency outstanding which has been proposed or assessed in writing against Parent or any of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Companysubsidiaries.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstandingTo Parent's knowledge, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No no audit or other examination of any Return of the Company Parent or any of its subsidiaries by any Tax authority is presently in progress, . Neither Parent nor has the Company or any of its subsidiaries has been notified of any request for such an audit or other examination, except for any audit or examination that would not be expected to have a Material Adverse Effect on Parent.
(viv) No material adjustment relating to any Returns filed by the Company Parent or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Parent or any of its subsidiaries or any representative thereof, except for any adjustment that would not be expected to have a Material Adverse Effect on Parent.
(viv) Neither the Company Parent nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Parent Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyParent, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Parent Balance Sheet in connection with the operation of the business of the Company Parent and its subsidiaries in the ordinary coursecourse of business.
(viivi) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Parent is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Parent or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is Code as a party or by which it or any of its subsidiaries is bound as result of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of Merger or the Codeother transactions contemplated hereby.
(viiivii) Neither the Company Parent nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesParent.
(ixviii) Neither the Company Parent nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementarrangement with any unaffiliated party.
(ix) Parent and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(x) None of the CompanyParent's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) The Parent Disclosure Schedule lists (A) any material foreign Tax holidays, (B) any material intercompany transfer pricing agreements, or other arrangements that have been established by Parent or any of its subsidiaries with any Tax authority and (C) any material expatriate programs or policies affecting Parent or any of its subsidiaries.
(xii) Neither the Company Parent nor any of its subsidiaries has constituted was either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section section 355 of the Code that (x) in the occurred within two years prior to before the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" plan or "series or related of transactions" (within the meaning of Section section 355(e) of the Code) in conjunction with that includes the Merger.
(xiii) None of Parent and its subsidiaries (A) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Parent) or (B) has any liability for the Taxes of any person (other than Parent and its subsidiaries) 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.
(xiv) Parent is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 897(c) of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sanmina Corp/De), Agreement and Plan of Reorganization (Sci Systems Inc)
Tax Returns and Audits. (i) The Except as set forth in Section 2.11(b)(i) of the Disclosure Schedules, the Company and each of its subsidiaries Subsidiaries have (a) prepared and timely filed all required U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports reports, including attachments and amendments thereto ("RETURNS"“Returns”) relating to any and all Taxes required concerning or attributable to be filed by the Company and each or any of its subsidiaries with any Tax authority, except Subsidiaries or their respective operations and such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have been completed in accordance with applicable law and (b) timely paid all Taxes shown they are required to be due on such Returnspay.
(ii) The Company and each of its subsidiaries as of the Effective Time will Subsidiaries have paid or withheld with respect to its employees their respective Employees and other third parties, all federal U.S. federal, state and state non-U.S. income taxesTaxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution ActAct amounts, Taxes pursuant to the Federal Unemployment Tax Act amounts and all other Taxes required to be withheldwithheld or paid, except and have timely paid any such Taxes which are not material withheld over to the Companyappropriate authorities.
(iii) Neither the Company nor any of its subsidiaries Subsidiaries is delinquent in the payment of any Tax, or has been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified of any request for such an audit or other examination.
(v) . No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereof. No claim has ever been made by an authority in a jurisdiction where the Company or any of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction.
(viv) Neither the Company nor any of its subsidiaries Subsidiaries has any liability liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to and neither the Company, other than Company nor any of its Subsidiaries has incurred any liability for unpaid Taxes that may since the Current Balance Sheet Date other than in the ordinary course of business. The Company and each of its Subsidiaries have accrued since December 31identified all uncertain tax positions contained in all Returns filed by the Company or its Subsidiaries and, 1999 except as set forth in connection Section 2.11(b)(v) of the Disclosure Schedule, have established adequate reserves and made any appropriate disclosures in the Financials in accordance with the operation requirements of the business Financial Interpretation No. 48 of FASB Statement No. 109.
(vi) The Company has made available to Parent or its legal counsel, copies of all Returns for the Company and its subsidiaries in the ordinary courseSubsidiaries filed for all periods since inception.
(vii) There is are (and immediately following the Effective Time there will be) no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company or any of its subsidiaries that, individually Subsidiaries relating to or collectively, would reasonably be expected attributable to give rise to the payment of any amount that would Taxes other than Liens for Taxes not be deductible pursuant to Sections 280G, 404 or 162(m) of the Codeyet due and payable. There is no contractbasis for the assertion of any claim relating or attributable to Taxes which, agreementif adversely determined, plan or arrangement to which would result in any Lien on the assets of the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeSubsidiaries.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed any consent agreement under Section 341(f(a) ever been a member of an affiliated group (within the meaning of Code or agreed to have Section 341(f)(2§1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of the Code apply which was Company), (b) ever been a party to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Tax sharing, indemnification or allocation agreement, nor does the Company or any of its subsidiariesSubsidiaries owe any amount under any such agreement, (c) any liability for the Taxes of any Person, under Treasury Regulation §1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group or consortium relief or similar arrangements), as a transferee or successor, by contract or agreement, by operation of law or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) Section 2.11(b)(ix) of the Disclosure Schedule sets forth the following information with respect to the Company and each of its Subsidiaries: (1) the basis of the Company and each of its Subsidiaries in its assets; (2) the amount of any net operating loss, net capital loss, unused investment, foreign, or other Tax credit and the amount of any limitation upon any of the foregoing; and (3) the amount of any deferred gain or loss allocable to the Company and each of its Subsidiaries arising out of any deferred intercompany transaction as defined in Treas. Reg. § 1.1502-13 or any similar provision of applicable law.
(x) Neither the Company nor any of its subsidiaries is party to or Subsidiaries has been, at any obligation under any tax-sharingtime, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use a “United States real property holding corporation” within the meaning of Section 168(h897(c)(2) of the Code.
(xi) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code.
(xii) Neither the Company nor any of its Subsidiaries has engaged in a “reportable transaction” as set forth in Treas. Reg. §1.6011-4(b), including any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xiii) Neither the Company nor any of its Subsidiaries is subject to Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment, place of business or source of income in that jurisdiction.
(xiv) Neither the Company nor any of its Subsidiaries will be required to include any income or gain or exclude any deduction or loss from taxable income as a result of any (a) change in method of accounting under Section 481 of the Code (x) in the two years prior to the date Closing, (b) closing agreement under Section 7121 of the Code entered into prior to the Closing, (c) deferred intercompany gain or excess loss account as of the Closing under Treasury Regulations under Section 1502 of the Code (or in each of items (a), (b), or (c), under any similar provision of applicable law), (d) installment sale or open transaction disposition prior to the Closing or (e) receipt of a prepaid amount prior to Closing.
(xv) The Company and its Subsidiaries are in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”) and the consummation of the transactions contemplated by this Agreement or will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(yxvi) in a distribution which could otherwise constitute part To the extent required, the Company and each of a "plan" or "series or related transactions" (within the meaning of its Subsidiaries has properly reported and/or withheld and remitted on amounts deferred under any Company nonqualified deferred compensation plan subject to Section 355(e) 409A of the Code) , in conjunction with good faith and pursuant to IRS Notices 2005-1, 2006-100 and 2007-89 for the Mergeryears 2006, 2007 and 2008.
Appears in 2 contracts
Samples: Agreement of Merger and Plan of Reorganization (Inferx Corp), Merger Agreement (Inferx Corp)
Tax Returns and Audits. (i) The Company Cybex and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company Cybex and each of its subsidiaries with any Tax authority, except such Returns which are not material to the CompanyCybex. The Company Cybex and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company Cybex and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the CompanyCybex.
(iii) Neither the Company Cybex nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company Cybex or any of its subsidiaries, nor has the Company Cybex or any of 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) No audit or other examination of any Return of the Company Cybex or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Cybex or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company Cybex or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Cybex or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Cybex nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Cybex Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyCybex, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Cybex Balance Sheet in connection with the operation of the business of the Company Cybex and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company Cybex or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Cybex or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount as a result of the Merger that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Cybex is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company Cybex nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company Cybex or any of its subsidiaries.
(ix) Neither the Company Cybex nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the CompanyCybex's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company Cybex nor any of its subsidiaries has constituted either was a "distributing corporation" or a "controlled controlling corporation" in a distribution of stock qualifying for tax-free treatment under to which Section 355 of the Code (x) in the applied and that occurred within two years prior to before the date of this Agreement or (y) in a distribution which could otherwise constitute as part of a "plan" plan or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with transactions that includes the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Cybex Computer Products Corp), Agreement and Plan of Reorganization (Apex Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, declarations, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet balance sheet dated October 31, 1999 in accordance with GAAPCanadian gaap, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December October 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the United States Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the United States Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the United States Code or agreed to have Section 341(f)(2) of the United States Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the United States Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) Company has (a) never been a member of an affiliated group (within the meaning of United States Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) and (b) no liability for the Taxes of any person (other than Company or any of its Subsidiaries) under United States Treas. Reg.
Section 1. 1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the United States Code.
(xixii) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" distributed the shares of any corporation in a distribution transaction satisfying the requirements of stock qualifying for tax-free treatment under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Code. The shares of neither Company nor any of its subsidiaries has been distributed in a transaction satisfying the requirements of Section 355 of the Code United States Code.
(xxiii) in the two years prior To Company's knowledge, no circumstances exist which would make Company or any subsidiary subject to the date application of this Agreement any of Sections 79 to 80.04 of the Income Tax Act (Canada). Neither Company nor any of its subsidiaries have acquired property or (y) in services from or disposed of property or provided services to, a distribution which could otherwise constitute part of a "plan" or "series or related transactions" person with whom it does not deal at arm's length (within the meaning of Section 355(ethe Income Tax Act (Canada)) for an amount that is other than the fair market value of such property or services, or has been deemed to have done so for purposes of the CodeIncome Tax Act (Canada).
(xiv) Company has not deducted any material amounts in conjunction with computing its income in a taxation year which may be included in a subsequent taxation year under Section 78 of the MergerIncome Tax Act (Canada).
Appears in 2 contracts
Samples: Acquisition Agreement (Peregrine Systems Inc), Acquisition Agreement (Peregrine Systems Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely Plastec has duly filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries Plastec with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the CompanyPlastec. The Company All such Returns are true, correct and each of its subsidiaries have complete in all material respects. Plastec has paid all Taxes shown to be due and payable on such Returns.
(ii) The Company All material amounts of Taxes that Plastec is required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither Plastec is not delinquent in the Company nor any payment of its subsidiaries has any material Tax nor is there any material amount of Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesPlastec, nor has the Company or any of its subsidiaries Plastec executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Taxmaterial amount of Tax which waiver or extension is presently in effect.
(iv) No To the Knowledge of Plastec, no audit or other examination of any Return of the Company or any of its subsidiaries Plastec by any Tax authority is presently in progress, progress nor has the Company or any of its subsidiaries Plastec been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Plastec has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Plastec or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries Plastec has any no liability for any material amount of unpaid Taxes which has have not been accrued for or reserved on Plastec’s balance sheets included in the Company Balance Sheet in accordance with GAAPFinancial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyPlastec, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent Fiscal Year in connection with the operation of the business of the Company and its subsidiaries Plastec in the ordinary coursecourse of business.
(vii) There is no contract, agreement, plan or arrangement to which This Section 2.15 contains the Company or any sole and exclusive representations and warranties of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply Plastec with respect to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company matter relating to Taxes or any of its subsidiariesReturns.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (GSME Acquisition Partners I), Agreement and Plan of Reorganization (GSME Acquisition Partners I)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, forms, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not not, individually or in the aggregate, material to the Company. The Company and each of its subsidiaries have paid all Taxes required to be paid whether or not shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not not, individually or in the aggregate, material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax. There is no material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, . Neither Company nor has the Company or any of its subsidiaries has executed any unexpired waiver of any statute of limitations on or extending the extension of any period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed or required to be filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes (whether or not shown to be done on any Return) which has not been accrued for or reserved on the Company Balance Sheet Company's balance sheet dated June 30, 2000 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31April 1, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no liens with respect to Taxes on any of the assets of Company or any of its subsidiaries, other than liens which are not individually or in the aggregate material, or customary liens for current Taxes not yet due and payable.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to should give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xii) Company and each of its subsidiaries are in full compliance with all terms and conditions of any Tax exemptions, Tax holiday or other Tax reduction agreement or order of a territorial or foreign government and the consummation of the Merger will not have any adverse effect on the continued validity and effectiveness of any such Tax exemptions, Tax holiday or other Tax reduction agreement or order.
(xiii) Company has not been and will not 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.
(xiv) Company has never been a member of an affiliated group of companies within the meaning of Section 1504 of the Code. Company has no liability for Taxes of any Person other than Company (i) under Section 1502-6 of the Treasury regulations (or any comparable provisions under state or foreign law) or (ii) as a transferee or successor.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Microchip Technology Inc), Agreement and Plan of Reorganization (Telcom Semiconductor Inc)
Tax Returns and Audits. (i) The Company MCS and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company MCS and each of its subsidiaries with any Tax authority, except such Returns which are not material to the CompanyMCS. The Company MCS and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company MCS and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the CompanyMCS.
(iii) Neither the Company MCS nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company MCS or any of its subsidiaries, nor has the Company MCS or any of 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) No audit or other examination of any Return of the Company MCS or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company MCS or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company MCS or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company MCS or any of its subsidiaries or any representative thereof.
(vi) Neither the Company MCS nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company MCS Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyMCS, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company MCS and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company MCS or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company MCS or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries MCS is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company MCS nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company MCS or any of its subsidiaries.
(ix) Neither the Company MCS nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the CompanyMCS's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Mission Critical Software Inc), Agreement and Plan of Reorganization (Netiq Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have Subsidiaries has timely filed (or has had timely filed on its behalf) with the appropriate Tax Authorities all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes Tax Returns required to be filed by the Company and each of its subsidiaries with any Subsidiaries, and such Tax authorityReturns are true, except such Returns which are not correct, and complete in all material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnsrespects.
(ii) The All material Taxes for which the Company and each or any of its subsidiaries as Subsidiaries is or may be liable in respect of taxable periods (or portions thereof) ending on or before the date of the Effective Time will have withheld with respect to its employees all federal and state income taxesCompany Balance Sheet, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes whether or not shown (or required to be withheldshown) on a Tax Return, except have been timely paid, or in the case of Taxes not yet due and payable, an adequate accrual in accordance with GAAP specifically in respect of such Taxes which are not material has been established on the Company Financials. All liabilities for Taxes attributable to the Companyperiod commencing on the date following the date of the Company Balance Sheet were incurred in the ordinary course of business and are consistent in type and amount with Taxes attributable to similar prior periods.
(iii) Neither Except for Permitted Liens, there are no liens for Taxes upon any property or assets of the Company nor or any of its subsidiaries has Subsidiaries.
(iv) No Federal, state, local or foreign Audits are presently pending with regard to any material Taxes or Tax deficiency outstandingReturns of the Company and its Subsidiaries and to the Knowledge of the Company, proposed no such Audit is threatened.
(v) There are no outstanding requests, agreements, consents or assessed waivers to extend the statutory period of limitations applicable to the assessment of any Taxes or deficiencies against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any and no power of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed attorney granted by the Company or any of its subsidiaries has been proposed Subsidiaries with respect to any Taxes is currently in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereofforce.
(vi) Neither the Company nor any of its subsidiaries has Subsidiaries is a party to any liability agreement providing for any material unpaid Taxes which has not been accrued for the allocation, indemnification or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation sharing of the business of the Company and its subsidiaries in the ordinary courseTaxes.
(vii) There Neither the Company nor any of its Subsidiaries has (i) been a member of an affiliated group (within the meaning of Section 1504 of the Code) or an affiliated, combined, consolidated, unitary, or similar group for state, local or foreign Tax purposes, other than the group of which the Company is no contractthe common parent or (ii) any liability for or in respect of the Taxes of, agreementor determined by reference to the Tax liability of, plan or arrangement to which another Person (other than the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of its subsidiaries thatstate, individually local or collectivelyforeign law), would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280Gas a transferee or successor, 404 by Contract or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codeotherwise.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two (2) years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(ix) There are no outstanding options, warrants, securities convertible into stock or other contractual obligations that might reasonably be treated for Federal income tax purposes as stock or another equity interest in the Company or any of its Subsidiaries.
(x) Neither the Company nor any of its Subsidiaries has agreed or is required to include in income any adjustment under Section 481(c) of the Code (or an analogous provision of state, local, or foreign law) by reason of a change in accounting method or otherwise in respect of the current or any future taxable period.
(xi) Neither the Company nor any Subsidiary has (A) entered into any Advance Pricing Agreement or similar agreement or (B) received written notice from a Tax Authority regarding any transfer pricing inquiry under Section 482 of the Code (or a similar provision of state, local, or foreign Law) that remains unresolved.
(xii) The Company does not have and has not had a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the United States and such foreign country, in respect of which a Tax Return is required to be filed and remains unfiled.
(xiii) Neither the Company nor any of its Subsidiaries has “participated” in a “reportable transaction” (as defined in §1.6011-4 of the United States Treasury Regulations promulgated under the Code) and is required to file an IRS Form 8886.
Appears in 2 contracts
Samples: Merger Agreement (Micron Technology Inc), Merger Agreement (Lexar Media Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, forms, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not not, individually or in the aggregate, material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not not, individually or in the aggregate, material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax. There is no material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, . Neither Company nor has the Company or any of its subsidiaries has executed any unexpired waiver of any statute of limitations on or extending the extension of any period for the assessment or collection of any Tax.
(iv) No Except as set forth in Section 2.15(b) of the Company Schedule, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed or required to be filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes (whether or not shown to be done on any Return) which has not been accrued for or reserved on the Company Balance Sheet Company's balance sheet dated March 31, 2000 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31April 1, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no liens with respect to Taxes on any of the assets of Company or any of its subsidiaries, other than liens which are not individually or in the aggregate material, or customary liens for current Taxes not yet due and payable.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to should give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither Except as set forth in Section 2.15(b) of the Company Schedule, neither Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xii) Company and each of its subsidiaries are in full compliance with all terms and conditions of any Tax exemptions, Tax holiday or other Tax reduction agreement or order of a territorial or foreign government and the consummation of the Merger will not have any adverse effect on the continued validity and effectiveness of any such Tax exemptions, Tax holiday or other Tax reduction agreement or order.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Quantum Effect Devices Inc), Agreement and Plan of Reorganization (PMC Sierra Inc)
Tax Returns and Audits. Except as set forth in Schedule 3.15 hereto, to the Knowledge of the Company:
(i) The Company and each of its subsidiaries Affiliated Companies have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries Affiliated Companies with any Tax authority, except authority prior to the date hereof. All such Returns which are not true, correct and complete in all material to the Companyrespects. The Company and each of its subsidiaries Affiliated Companies have paid all Taxes shown to be due on such Returns.
(ii) The Company All Taxes that the Affiliated Companies are required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Affiliated Companies have not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesAffiliated Companies, nor has have the Company or any of its subsidiaries Affiliated Companies executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries Affiliated Companies by any Tax authority is presently in progress, nor has have the Company or any of its subsidiaries Affiliated Companies been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Affiliated Companies has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Affiliated Companies or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any The Affiliated Companies have no liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe U.S. GAAP Financial Statements for the most recent fiscal year ended, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries Affiliated Companies in the ordinary course.
(vii) There course of business, none of which is no contractmaterial to the business, agreement, plan results of operations or arrangement to which the Company or any of its subsidiaries is a party as financial condition of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeAffiliated Companies.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Exchange Agreement (Applied Spectrum Technologies Inc), Exchange Agreement (Cyber Merchants Exchange Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, forms, estimates, information statements and reports ("RETURNS"“Returns”) relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not not, individually or in the aggregate, material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns. All Returns were complete and accurate in all material respects and have been prepared in all material respects in compliance with all applicable Legal Requirements. The Company has made available to Parent correct and complete copies of all United States federal income and state income and franchise Tax Returns filed with respect to Tax periods ending on or after January 31, 2001 and any other Returns specifically requested by Parent and, with respect to pending or outstanding matters, all examination reports, closing agreements and statements of deficiencies assessed against or agreed to by the Company or any of its subsidiaries.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extension of any the period for the assessment or collection of any Tax. For purposes of this Section 2.15(b)(ii) only, “material Tax” and “material Tax deficiency” shall mean any individual Tax or Tax deficiency of an amount greater than $100,000 (or foreign currency equivalent).
(iviii) No Except as set forth in Section 2.15(b)(iii) of the Company Disclosure Letter, no audit, or pending audit of, or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(viv) No material unresolved adjustment relating to any Returns filed or required to be filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(viv) Neither the Company nor any of its subsidiaries has any material liability for any material unpaid Taxes (whether or not shown to be due on any Return) which has not been accrued for or reserved on the Company Company’s Interim Balance Sheet in accordance with GAAP, whether asserted or unasserted, whether or not shown on any Return, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the Interim Balance Sheet Date in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no claims for Taxes being asserted against the Company or any of its subsidiaries that have resulted in, and there are no, Encumbrances with respect to Taxes on any of the assets of the Company or any of its subsidiaries, other than Encumbrances which are not, individually or in the aggregate, material, or customary Encumbrances for Taxes not yet due and payable.
(viivi) There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries Employee that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ixvii) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement, nor does the Company or any of its subsidiaries have any liability or potential liability to another party under any such agreement or arrangement. Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated, unitary, combined or similar Return (other than Returns which include only the Company and any of its subsidiaries) under any federal, state, local or foreign law. Neither the Company nor any of its subsidiaries is party to any joint venture, partnership or other arrangement that could be treated as a partnership for federal and applicable state, local or foreign Tax purposes.
(xviii) None of the Company's ’s or its subsidiaries' ’ assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xiix) Neither the Company nor any of its subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with the MergerTransactions.
(x) Neither the Company nor any of its subsidiaries has consummated, has participated in, or is currently participating in any transaction which was or is a “Tax shelter,” “listed transaction” or “reportable transaction” as defined in Sections 6662, 6662A, 6011, 6012, 6111 or 6707A of the Code or the Treasury Regulations promulgated thereunder, including, but not limited to, transactions identified by the IRS by notice, regulation or other form of published guidance as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) Each of the Company and each of its subsidiaries has in its possession official foreign government receipts for any material Taxes paid by it to any foreign Tax authorities.
(xii) The Company for itself and for its subsidiaries has furnished to Parent all documentation relating to any Tax holidays or incentives. The Company and its subsidiaries are in compliance with the requirements for any applicable Tax holidays or incentives.
(xiii) Neither the Company nor any of its subsidiaries is or has ever been a “United States real property holding corporation” within the meaning of Section 897 of the Code.
(xiv) The Company and each of its subsidiaries has complied in all material respects with all applicable Legal Requirements relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445 and 1446 of the Code or similar provisions under any foreign law), has, within the time and in the manner prescribed by law, withheld from Employee wages or compensation and paid over to the proper governmental authorities (or is properly holding for such timely payment) all amounts required to be so withheld and paid over under all applicable Legal Requirements, including federal and state income Taxes, Federal Insurance Contribution Act, Medicare Federal Unemployment Tax Act, relevant state income and employment Tax withholding laws, and has timely filed all withholding Returns required to be filed.
Appears in 2 contracts
Samples: Merger Agreement (Tippingpoint Technologies Inc), Merger Agreement (3com Corp)
Tax Returns and Audits. (i) Except as set forth in Schedule 2.15 hereto:
(ii) The Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the Company. All such Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries have has paid all Taxes shown to be due and payable on such Returns.
(iiiii) All Taxes that the Company is required by law to withhold or collect have been duly withheld or collected, and have been timely paid over to the proper governmental authorities to the extent due and payable.
(iv) The Company and each has not been delinquent in the payment of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment any material Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivv) No To the knowledge of the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(vvi) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vivii) Neither the The Company nor any of its subsidiaries has any no liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business, none of which is material to the business, results of operations or financial condition of the Company.
(viiviii) There is no contractThe Company has not taken any action and does not know of any fact, agreement, plan or arrangement other circumstance that is reasonably likely to which prevent the Company or any of its subsidiaries is Merger from qualifying as a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property reorganization within the meaning of Section 168(h368(a) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ithaka Acquisition Corp), Merger Agreement (Ithaka Acquisition Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Significant Subsidiaries have (a) timely filed or caused to be filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to material Taxes required to be filed by the Company and each or any of its subsidiaries with any Tax authoritySignificant Subsidiaries, except and such Returns which are not true and correct and have been completed in accordance with applicable Legal Requirements in all material respects and (b) timely paid or withheld (and timely paid over any withheld amounts to the Company. The Company and each of its subsidiaries have paid appropriate Governmental Entity) all material Taxes shown required to be paid or withheld whether or not shown as due on such Returnsany Return, other than material Taxes for which an adequate reserve has been accrued or established on the Company Financials.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries Subsidiaries has any material Tax deficiency outstanding, assessed or proposed or assessed in writing against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iviii) No audit or other examination of any Return of the Company or any of its subsidiaries by Subsidiaries relating to any material Tax authority is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(viv) No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereofthereof that remains unpaid.
(viv) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries Significant Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying occurring during the last three (3) years intended to qualify for tax-free treatment under Section 355 of the Code Code.
(xvi) None of the Company or any of its Subsidiaries has engaged in a transaction that the two years prior to Internal Revenue Service has identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(vii) The Company and its Significant Subsidiaries are in compliance in all material respects with all terms and conditions of any material Tax exemption, Tax holiday or other Tax reduction agreement or order of a territorial or non-U.S. government and the date consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or (y) in a distribution which could otherwise constitute part of a "plan" other Tax reduction agreement or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerorder.
Appears in 2 contracts
Samples: Merger Agreement (Sun Microsystems, Inc.), Merger Agreement (Storage Technology Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes All material Tax Returns required to be filed by or with respect to the Company and each of its subsidiaries with Subsidiaries have been timely filed (taking into account any extension of time in which to file) and in the manner prescribed by law in all material respects. All such Tax Returns are in all material respects true, correct and complete, and all Taxes owed by the Company and its Subsidiaries, whether or not shown on any Tax authorityReturn (including all withholding and payroll Taxes), have been paid, except such Returns which for those Taxes that have not had and are not material reasonably expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company and each None of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor Subsidiaries has received notice of any claim by any Tax Authority in any jurisdiction other than in which it has filed Tax Returns that the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on Subsidiaries are or extending the period for the assessment or collection of any Taxmay be subject to taxation by that jurisdiction.
(ivii) No audit or other examination of adjustment relating to any Tax Return of the Company or any of its subsidiaries Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Authority has been proposed in writing formally or informally by any Tax authority Authority to the Company or any of its subsidiaries Subsidiaries.
(iii) There are no Liens or other encumbrances with respect to Taxes upon any of the assets or properties of the Company or any representative thereofof its Subsidiaries, other than with respect to Taxes not yet due and payable.
(iv) No Audit is currently pending with respect to any Tax Return of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has received any communication from any Tax Authority that an Audit is forthcoming. Neither the Company nor any of its Subsidiaries has been delinquent in the payment of any Tax, and there is no deficiency for any Taxes that is outstanding, assessed or proposed against the Company or any of its Subsidiaries, which deficiency has not been paid in full when due and payable or which has not been adequately reserved for in the Company Financials, except for delinquencies and deficiencies that, individually or in the aggregate, have not and are not reasonably expected to have a Material Adverse Effect on the Company.
(v) There are no outstanding written agreements or waivers extending the statutory period of limitation applicable to any claim for, or the period for the collection or assessment of, Taxes due from or with respect to the Company or any of its Subsidiaries for any taxable period. No power of attorney granted by or with respect to the Company or any of its Subsidiaries relating to Taxes is currently in force, and no extension of time for filing any Tax Return required to be filed by or on behalf of the Company or any of its Subsidiaries is in force. The Company has delivered or made available to Parent complete and correct copies of all foreign, federal and state income Tax Returns, audit reports and statements of deficiencies for the Company and each of its Subsidiaries filed by or issued to or with respect to the Company and each of its Subsidiaries for all periods which have been requested by Parent.
(vi) Neither the Company nor any of its subsidiaries Subsidiaries is a party to or bound by, or has any obligation under, any Tax sharing agreement or similar contract or arrangement. Neither the Company nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated, combined, or unitary income Tax Return (other than a group the common parent of which was the Company). Neither the Company nor any of its Subsidiaries has any material liability for the Taxes of any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, person (other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursesuch Subsidiary) 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.
(vii) There is no contract, agreement, plan or arrangement to which Neither the Company or nor any of its subsidiaries Subsidiaries has agreed to, or is a party as required to, make any adjustments under Section 481(a) or Section 263A of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Code or any comparable provision under state or foreign Tax laws by reason of its subsidiaries that, individually a change in accounting method or collectively, would reasonably be expected to give rise to the payment of any amount otherwise that would not be deductible pursuant to Sections 280G, 404 or 162(m) of effective for any period after the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeClosing Date.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed any consent agreement constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 341(f355 of the Code in the two years prior to the date of this Agreement or in a distribution which could otherwise constitute part of a “plan” or “series of related transaction” (within the meaning of Section 355(e) of the Code or agreed to Code) in conjunction with the Merger.
(ix) The Company and its Subsidiaries have Section 341(f)(2) of the Code apply to any disposition of not “participated” in a subsection (f) asset “listed transaction” (as defined in Section 341(f)(4) 1.6011-4 of the United States Treasury Regulations promulgated under the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement).
(x) The Company and each of its Subsidiaries is not, and during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code has not been, a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.
(xi) None of the Company's or ’s nor any of its subsidiaries' Subsidiaries’ assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Neither the The Company nor any has adequately disclosed on its Tax Returns all positions taken therein that could give rise to a substantial understatement of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (federal income Tax within the meaning of Section 355(e6662 of the Code.
(xiii) The Company is not aware of any fact or circumstance that (i) would prevent the Merger from qualifying as a “reorganization” under Section 368(a) of the CodeCode or (ii) in conjunction with cause Parent to be treated as other than a corporation pursuant to Section 367(a) of the Code for purposes of the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Solectron Corp), Merger Agreement (Flextronics International Ltd.)
Tax Returns and Audits. (i) The Company Fractal and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company Fractal and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The Company Fractal, and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company Except as is not material to Fractal, Fractal and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company Except as is not material to Fractal, neither Fractal nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company Fractal or any of its subsidiaries, nor has the Company Fractal or any of 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) No Except as is not material to Fractal, no audit or other examination of any Return of the Company Fractal or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Fractal or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No Except as is not material to Fractal, no adjustment relating to any Returns filed by the Company Fractal or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Fractal or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Except as is not material to Fractal, neither Fractal nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Fractal Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary courseFractal.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Fractal or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company Fractal nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesFractal.
(ix) Neither the Company Fractal nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity sharing or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Fractal Design Corp), Agreement and Plan of Reorganization (Metatools Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have timely filed all U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to all Taxes required to be filed by of the Company and each or any of its subsidiaries with any Tax authority, except Subsidiaries and such Returns which are not true and correct in all material to the Company. The Company respects and each of its subsidiaries have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable Legal Requirements.
(ii) The Company and each of its subsidiaries as of the Effective Time will Subsidiaries have withheld complied in all material respects with respect to its employees all federal and state income taxes, Taxes pursuant applicable Legal Requirements relating to the Federal Insurance Contribution Actpayment and withholding of Taxes (including withholding of Taxes in connection with amounts paid or owing to any employee, Taxes pursuant former employee or independent contractor) and has duly and timely withheld and has paid over to the Federal Unemployment Tax Act and other Taxes appropriate Governmental Entity all amounts required to be withheld, except such Taxes which are not material so withheld and paid over on or prior to the Companydue date thereof under all applicable Legal Requirements.
(iii) Neither the Company nor any of its subsidiaries Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax, which waiver or extension is currently in effect.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently currently in progress, nor has the Company or any of its subsidiaries been notified Subsidiaries received written notice of any request for such an audit or other examination. Neither the Company nor any of its Subsidiaries has received written notice of a proposed material adjustment by any Tax authority relating to any Return filed by it. Each of the Company and its Subsidiaries has in its possession copies of all Tax settlement agreements or similar reports issued by a Tax authority as a result of an auditor examination for all periods since its inception.
(v) No material adjustment relating to any Returns filed by Neither the Company or nor any of its subsidiaries Subsidiaries is or has been proposed in writing formally or informally by at any Tax authority to time, a “United States Real Property Holding Corporation” within the Company or any meaning of its subsidiaries or any representative thereofSection 897(c)(2) of the Code.
(vi) Neither the Company nor any of its subsidiaries Subsidiaries is required to include any income or gain in or exclude any deduction or loss from income for any tax period (or portion thereof) after the Closing (A) as a result of a closing agreement (within the meaning of Section 7121 of the Code or any comparable provision of applicable law) executed prior to the Closing or (B) under Section 481(a) of the Code by reason of a voluntary change in accounting method initiated by, or with respect to, the Company or a Subsidiary. The IRS has not proposed in writing any such adjustment or change in accounting method.
(vii) Neither the Company nor any of its Subsidiaries has any liability Liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Financials in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to and neither the Company, other than Company nor any liability of its Subsidiaries has incurred any Liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business date of the Company and its subsidiaries Balance Sheet other than in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any course of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codebusiness.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed any consent agreement under Section 341(f(a) ever been a member of an affiliated group (within the meaning of Code or agreed to have Section 341(f)(2§1504(a)) filing a consolidated U.S. federal income Tax Return (other than a group the common parent of the Code apply which was Company), (b) ever been a party to any disposition Tax sharing, indemnification or allocation agreement, or (c) any liability for the Taxes of a subsection any Person (f) asset (as defined in Section 341(f)(4) of the Code) owned by the other than Company or any of its subsidiariesSubsidiaries), under Treasury Regulation § 1.1502 6 (or any similar provision of state, local or non-U.S. law including any arrangement for group or consortium Tax relief or similar arrangement), as a transferee or successor, by contract or agreement, by operation of law, or otherwise.
(ix) Neither the Company nor any of its subsidiaries is party Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to or has any obligation under any qualify for tax-sharing, tax indemnity or tax allocation agreement or arrangementfree treatment under Section 355 of the Code.
(x) None Neither the Company nor any of the Company's or its subsidiaries' assets are tax exempt use property Subsidiaries has participated in any listed transaction within the meaning of Section 168(h1.6011-4(b)(2) of the CodeTreasury Regulations, or, to the knowledge of the Company, in a reportable transaction under Treasury Regulations Section 1.6011-4(b).
(xi) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either received written notice from a "distributing corporation" Governmental Entity in a jurisdiction where the Company or a "controlled corporation" Subsidiary, as applicable, does not file Returns to the effect that the Company or the Subsidiary is or may be subject to taxation by that jurisdiction.
(xii) The Company and its Subsidiaries are and have been in a distribution compliance in all material respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of stock qualifying contemporaneous documentation substantiating transfer pricing practices of the Company and its Subsidiaries. The prices for taxany property or services (or for the use of any property) provided by or to the Company or any of its Subsidiaries are arm’s-free treatment length prices for purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) 482 of the Code.
(xiii) The Company and each of its Subsidiaries have complied in conjunction all material respects with all applicable escheat or unclaimed property laws, and neither the MergerCompany nor any of its Subsidiaries has any liabilities for the payment of any amounts as a result of the application of such laws that have not been reserved for in accordance with GAAP on the Company Financials.
(xiv) The Company has provided to Parent all documentation relating to, and each of the Company and its Subsidiaries is in compliance in all material respects with, all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order.
Appears in 2 contracts
Samples: Merger Agreement (McAfee, Inc.), Merger Agreement (Secure Computing Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (At Home Corp), Merger Agreement (Excite Inc)
Tax Returns and Audits. (i) The Company has prepared and each of its subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to be filed have been paid by the Company and each of its subsidiaries with (whether or not shown on any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries Return) have paid all Taxes shown to be due on such Returnsbeen paid.
(ii) The Company has paid all Taxes required to be paid and each of its subsidiaries as of the Effective Time will have has withheld or paid with respect to its employees all federal Employees and state income taxes, Taxes pursuant other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Companywithheld or paid.
(iii) Neither the Company nor any of its subsidiaries has any material No Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extension of the period for the assessment or collection of any TaxTax with continuing effect.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) . No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax tax authority to the Company or any of its subsidiaries or any representative thereof.
(viv) Neither the The Company nor any of its subsidiaries has any liability had no material liabilities for any material unpaid Taxes as of the date of the Closing Balance Sheet which has have not been accrued for or reserved on the Company Closing Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available to Parent or its legal counsel copies of all Tax Returns for the Company filed for all periods since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course2002.
(vii) There is are (and immediately following the Effective Time there will be) no contractliens, agreementpledges, plan charges, claims, restrictions on transfer, mortgages, security interests or arrangement to which other encumbrances of any sort (collectively, "Liens") on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company relating to or any of its subsidiaries that, individually or collectively, would reasonably be expected attributable to give rise to the payment of any amount that would Taxes other than Liens for Taxes not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codeyet due and payable.
(viii) Neither The Company has (a) never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does the Company nor owe any amount under any such agreement, or (c) no liability for the Taxes of its subsidiaries has filed any consent agreement person (other than Company) under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection Treas. Reg. § 1.1502-6 (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any similar provision of its subsidiariesstate, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise.
(ix) Neither the The Company nor is not and has not been, at any of its subsidiaries is party to or has any obligation under any tax-sharingtime, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property a "United States Real Property Holding Corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xix) Neither the The Company nor any of its subsidiaries has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying intended to qualify for tax-tax free treatment under Section 355 of the Code Code.
(xxi) in the two years prior to the date of this Agreement or (y) The Company has not engaged in a distribution which could otherwise constitute part "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "plan" listed transaction", as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xii) The Company will not be required to include any material income or "series material gain or related transactions" exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Code.
(xiii) No holder of Company Common Stock holds shares of Company Common Stock that are non-transferable and subject to a substantial risk of forfeiture within the meaning of Section 355(e83 of the Code with respect to which a valid election under Section 83(b) of the Code) in conjunction with the MergerCode has not been made.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Oncothyreon Inc.), Agreement and Plan of Reorganization (Biomira Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes (including foreign Taxes) required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has is currently delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extended the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereofthereof which has not yet been finally resolved.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement. Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated, unitary, combined or similar Return (other than Returns which include only the Company and any of its subsidiaries) under any federal, state, local or foreign law. Neither the Company nor any of its subsidiaries is party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(x) Except as may be required as a result of the Merger, the Company and its subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Part 2.7 of the Company Disclosure Schedule lists (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by the Company or any of its subsidiaries with any Tax authority and (C) any expatriate programs or policies affecting the Company or any of its subsidiaries. The Company and each of its subsidiaries are in full compliance with each such holiday, agreement, arrangement, program or policy. The consummation of the Merger will not have any adverse effect on the continued validity and effectiveness of any such holiday, agreement, arrangement, program or policy relative to any government authority.
(xiii) Neither the Company nor any subsidiary of its subsidiaries the Company has constituted participated as either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code Code.
(xxiv) in To the two years prior knowledge of the Company, neither the Company nor any of its affiliates has taken or agreed to take any action that would prevent the date of this Agreement or (y) in Merger from qualifying as a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (reorganization within the meaning of Section 355(e368(a) of the Code. The Company is not aware of any agreement, plan or other circumstances that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) in conjunction with of the MergerCode.
Appears in 2 contracts
Samples: Merger Agreement (Extended Systems Inc), Merger Agreement (Palm Inc)
Tax Returns and Audits. (i) The Company Oplink and each of its subsidiaries have timely filed all material federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company Oplink and each of its subsidiaries with any Tax authority, except such . Such Returns which are not true and correct in all material to the Companyrespects and have been completed in accordance with applicable law. The Company Oplink and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company Oplink and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees (and timely paid over to the appropriate Taxing authority) all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to Act ("FICA") and the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which that are not material to the CompanyOplink.
(iii) Neither the Company Oplink nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency or adjustment outstanding, proposed or assessed against the Company Oplink or any of its subsidiaries, nor has the Company Oplink or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any material Return of the Company Oplink or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Oplink or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Oplink nor any of its subsidiaries has had, as of December 31, 2001, any liability for any material unpaid Taxes which that has not been accrued for or reserved against on the Company Oplink Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise. Since December 31, which is material to the Company2001, other than neither Oplink nor any of its subsidiaries has incurred any liability for unpaid any material Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries other than in the ordinary coursecourse of business.
(viivi) There is no contract, agreement, plan or arrangement to which the Company Oplink or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Oplink or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount in excess of $250,000 that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Oplink is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiivii) Neither the Company Oplink nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company Oplink or any of its subsidiaries.
(ixviii) Neither the Company Oplink nor any of its subsidiaries (a) is party to or has any obligation under any tax-Tax sharing, tax indemnity or tax allocation agreement or arrangement.
, (xb) None has ever been a member of the Company's or its subsidiaries' assets are tax exempt use property an affiliated group (within the meaning of Section 168(hCode ss.1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Oplink), or (c) has any liability for the CodeTaxes of any person (other than Oplink or any of its subsidiaries) under Treas. Reg. ss. 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(xiix) Neither the Company Oplink nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Avanex Corp), Agreement and Plan of Reorganization (Avanex Corp)
Tax Returns and Audits. (i) The Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, Company and each of its subsidiaries Subsidiaries have properly filed on a timely filed basis all federalmaterial Tax Returns that they were required to file, stateand all such Tax Returns were true, local complete and foreign returnscorrect in all material respects. Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, estimateseach of Company and its Subsidiaries has paid on a timely basis all material Taxes that were due and payable. Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, information the most recent financial statements contained in the Company SEC Reports reflect an adequate reserve (in accordance with GAAP) for all material Taxes payable by Company and its Subsidiaries through the date of such financial statements and reports ("RETURNS") relating to all unpaid Taxes required to be filed by the of Company and each of its subsidiaries Subsidiaries for all tax periods commencing after the date of such financial statements arose in the ordinary course of business consistent with past practice. Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, no material deficiencies for any Tax authorityTaxes have been asserted or assessed, except such Returns which are not material or to the Knowledge of Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Actproposed, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Taxmaterial Tax which waiver or extension remains in effect.
(ivii) No Except as set forth in Section 2.6(b) of the Company Disclosure Schedule Company and each of its Subsidiaries have timely paid or withheld with respect to their employees (and paid over any amounts withheld to the appropriate Taxing authority) all federal and state income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other similar Taxes required to be paid or withheld and material to Company and its Subsidiaries, taken as a whole.
(iii) Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, no audit or other examination of any material Tax Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progressprogress as of the date hereof, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing as of the date hereof of any request for such an audit or other examination.
(iv) Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, Company has made available (for this purpose in the Company electronic data room or otherwise) to Parent copies of all material Tax Returns for Company and each of its Subsidiaries filed for all periods beginning January 1, 2006 or later.
(v) No material adjustment relating to any Returns filed by Except as set forth in Section 2.6(b) of the Company or Disclosure Schedule, neither Company nor any of its subsidiaries Subsidiaries has been proposed constituted either a “distributing corporation” or a “controlled corporation” in writing formally or informally by any Tax authority a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (A) in the two years prior to the Company date of this Agreement or any (B) in a distribution that otherwise constitutes part of its subsidiaries a “plan” or any representative thereof“series of related transactions” (within the meaning of Section 355(e) of the Code) that includes the First Merger and the Second Merger.
(vi) Neither Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, neither Company nor any of its subsidiaries Subsidiaries has engaged in or is currently engaged in a “reportable transaction,” as set forth in Treasury Regulations section 1.6011-4(b), or any liability for any material unpaid Taxes which has not been accrued for transaction that is the same as or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material substantially similar to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation one of the business types of transactions that the Company Internal Revenue Service has determined to be a tax avoidance transaction and its subsidiaries identified by notice, regulation or other form of published guidance as a “listed transaction,” as set forth in the ordinary courseTreasury Regulations section 1.6011-4(b)(2).
(vii) There Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, neither Company nor any of its Subsidiaries has taken any action or has failed to take any action or has Knowledge of any fact, agreement, plan or other circumstance that would cause the First Merger and the Second Merger to fail to qualify as a reorganization with the meaning of Section 368(a) of the Code.
(viii) Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, there is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries Subsidiaries is a party as of the date of this Agreementparty, including but not limited to the provisions of this Agreement, covering any employee employee, consultant or former employee director of the Company or any of its subsidiaries Subsidiaries, that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code.
(ix) Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, neither Company nor any of its Subsidiaries (A) has any actual or potential liability under Treasury Regulations 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 Company or any of its Subsidiaries, or (B) is a party to or bound by any Tax indemnity, Tax sharing, Tax allocation or similar agreement.
(x) Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, neither Company nor any of its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any Contract that could obligate it to make any payments that may be treated as an “excess parachute payment” under Section 280G of the Code, determined without regard to Section 280G(b)(4)(B) of the Code. There Except as set forth in Section 2.6(b) of the Company Disclosure Schedule, there is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries ERISA Affiliate (as defined in Section 2.12(a)(iii)) thereof is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual Company Employee for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under . Section 341(f2.6(x) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Disclosure Schedule lists all persons who Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets reasonably believes are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" “disqualified individuals” (within the meaning of Section 355(e) 280G of the CodeCode and the regulations promulgated thereunder) in conjunction with as determined as of the Mergerdate hereof.
Appears in 2 contracts
Samples: Merger Agreement (Divx Inc), Merger Agreement (Divx Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.10: ---------------------- -------------
(i) The Company has prepared and each of its subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company Company: (A) has paid timely or accrued all Taxes it is required to pay or accrue and each of its subsidiaries as of (B) has timely withheld (and paid over to the Effective Time will have withheld appropriate governmental authorities) with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extended the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the The Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability no liabilities for any material unpaid federal, state, local and foreign Taxes which has have not been accrued for or reserved on against in the Company Balance Sheet in accordance with GAAPFinancials, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation date of the business of the Current Company and its subsidiaries Balance Sheet other than in the ordinary coursecourse of business consistent with past practice.
(vi) The Company has provided to Parent copies of all federal and state income and all state sales and use Returns for all periods since the date of Company's incorporation.
(vii) There are (and as of immediately following the Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of the Company relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable as of such time.
(viii) There is no reasonable basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company.
(ix) None of the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementparty, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections Section 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiixi) Neither the The Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xii) The Company has (a) never been a member of an affiliated group (within the meaning of Code (S)1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company) and (b) no liability for the Taxes of any person (other than Company or any of its subsidiariesSubsidiaries) under Treas. Reg. (S) 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(ixxiii) Neither the The Company nor any of its subsidiaries is not a party to any tax sharing, indemnification or has allocation agreement and does not owe any obligation amount under any tax-sharing, tax indemnity or tax allocation agreement or arrangementsuch agreements.
(xxiv) None of the Company's or its subsidiaries' assets are tax exempt use The Company is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xixv) Neither No adjustment or deficiency relating to any Return filed or required to be filed by the Company nor has been proposed in writing or, to the knowledge of the Company, informally by any Tax authority to the Company or any representative thereof except proposed adjustments or deficiencies that have been resolved prior to the date hereof.
(xvi) The Company utilizes the accrual method of its subsidiaries accounting for U.S. federal income tax purposes.
(xvii) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Seagate Technology Malaysia Holding Co Cayman Islands), Agreement and Plan of Reorganization (Seagate Technology Inc)
Tax Returns and Audits. Except as set forth in Section 2.6(b) of the Company Disclosure Letter:
(i) The Company and each of its subsidiaries Subsidiaries have (a) timely filed or caused to be filed all federal, state, local and foreign returns, estimates, information statements income Tax Returns and reports ("RETURNS") relating to Taxes all other material Tax Returns required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material relating to the Company. The Company and each of its subsidiaries have paid all Taxes shown concerning or attributable to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, and such Tax Returns are true, correct, and complete and have been completed in accordance with applicable Legal Requirements and (b) timely paid or withheld (and timely paid over any withheld amounts to the appropriate Governmental Entity) all material Taxes required to be paid or withheld whether or not shown as due on any Tax Return, other than Taxes for which an adequate reserve has been accrued or established on the Company’s Balance Sheet.
(ii) None of the Company or any of its Subsidiaries has any Tax deficiency or adjustment outstanding, assessed or proposed against it for which adequate reserves have not been established on the Company’s Balance Sheet, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iviii) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(viv) No material adjustment relating to any Returns Tax Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereofthereof that remains unpaid or for which adequate reserves have not been established on the Company’s Balance Sheet.
(viv) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee None of the Company or any of its subsidiaries that, individually Subsidiaries has in the past five (5) years constituted either a “distributing corporation” or collectively, would reasonably a “controlled corporation” in a distribution of stock purported or intended to be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 governed in whole or 162(m) in part by Section 355 or Section 361 of the Code. There is no contract, agreement, plan or arrangement to which .
(vi) None of the Company or any of its subsidiaries Subsidiaries has engaged in a transaction that is the same as or substantially similar to one of the types of tax avoidance transactions that the Internal Revenue Service identified by notice, regulation, or other form of published guidance as a party listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2), which could have an affect on the Company’s or such Subsidiary’s Taxes for a year not closed by which it the applicable statute of limitations.
(vii) The Company and its Subsidiaries are in compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order in the United States or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codeforeign jurisdiction.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed incurred any consent agreement under Section 341(f) liability for Taxes since the date of the Code or agreed Company Balance Sheet other than Taxes incurred in the ordinary course of business which are consistent in type and amount with Taxes attributable to have Section 341(f)(2prior periods.
(ix) None of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
Subsidiaries has (ixa) Neither ever been a member of an affiliated group (within the meaning of Code § 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company nor or a Subsidiary), (b) ever been a party to any Tax sharing, indemnification or allocation or group payment agreement or arrangement, (c) any liability for the Taxes of any Person (other than Company or any of its subsidiaries is Subsidiaries), under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law including any arrangement for group or consortium Tax relief or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementother arrangement that could be treated as a partnership for Tax purposes.
(x) None of the Company's Company or its subsidiaries' Subsidiaries will be required to include any income or gain or exclude any deduction or loss from taxable income (except to the extent adequate reserves have been established on the Company’s Balance Sheet) as a result of (a) any adjustment under Section 481(c) of the Code, (b) closing agreement under Section 7121 of the Code, (c) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code, (d) Section 482 of the Code (or in the case of each of (a), (b), (c) and (d)), under any similar provision of applicable state, local or foreign law, (e) installment sale or open transaction disposition or (f) prepaid amount.
(xi) The Company and its Subsidiaries has been resident in its jurisdiction of incorporation for corporation tax purposes; each of is not and has not been treated as resident or belonging, or subject to Tax in any other jurisdiction for any Tax purpose. The Company and its Subsidiaries have made all claims necessary to obtain relief from double taxation for all material items under any relevant bilateral convention relating to double taxation in respect of income, profits, gains or payments accrued.
(xii) All material written concessions, agreements or undertakings, between the Company and its Subsidiaries and any foreign Tax authorities regarding or affecting the future taxation treatment of the Company have been disclosed in the Company Disclosure Letter.
(xiii) None of the Company or any of its Subsidiaries has within the past three years suffered any material non-routine investigation or audit by any taxation or excise authority.
(xiv) None of the Company or any of its Subsidiaries have any current liability to make any payment that has not been adequately reserved for on the Company’s Balance Sheet pursuant to an indemnity, guarantee or covenant entered into before the date of this Agreement under which the Company or its Subsidiaries agreed to meet or pay a sum equivalent to or by reference to another person’s liability for Taxes.
(xv) There are no liens for Taxes upon any of the assets are tax exempt use of the Company or any of its Subsidiaries, other than liens for Taxes not yet due and payable.
(xvi) The Company is not a “United States real property holding corporation” within the meaning of Section 168(h897(c)(2) of the Code.
(xixvii) Neither the The Company nor and its Subsidiaries have adequately reserved for any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction liability associated with the Mergertheir transfer pricing method.
Appears in 2 contracts
Samples: Merger Agreement (Kanbay International Inc), Merger Agreement (Cap Gemini Sa)
Tax Returns and Audits. (ia) The Company Inovio and each of its subsidiaries Subsidiaries have prepared and timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") required Tax Returns relating to any and all Taxes concerning or attributable to Inovio or its Subsidiaries and such Tax Returns are accurate and complete in all material respects. Inovio and/or its Subsidiaries have paid or accrued all Taxes shown on such Tax Returns.
(b) Inovio and each of its Subsidiaries have paid all Taxes required to be filed by the Company paid and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its their employees (and paid over to the appropriate Taxing authority) all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iiic) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, assessed or proposed or assessed against the Company Inovio or any of its subsidiariesSubsidiaries, and neither Inovio nor any Subsidiary is a party to any action or proceeding for the assessment or collection of Taxes, nor has the Company Inovio or any of its subsidiaries Subsidiaries executed any unexpired outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any Tax.
(ivd) No audit or other examination of any Tax Return of the Company Inovio or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company Inovio or any of its subsidiaries Subsidiaries been notified of (in writing) that any request for Taxing authority is threatening or planning to initiate such an audit or other examination. No written claim has ever been asserted by a Governmental Entity in a jurisdiction where Inovio or any Subsidiary does not file Tax Returns that such entity is or may be subject to taxation by that jurisdiction.
(ve) No material adjustment relating to any Returns filed by As of the Company or any date of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Inovio Balance Sheet, neither Inovio nor any of its subsidiaries Subsidiaries has any liability material liabilities for any material unpaid Taxes Taxes, which has have not been accrued for or reserved on the Company Inovio Balance Sheet in accordance with US GAAP, whether asserted or unassertedand since the date of the Inovio Balance Sheet, contingent or otherwise, which is material to the Company, other than neither Inovio nor any of its Subsidiaries has incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries other than in the ordinary coursecourse of business.
(viif) There is are no contract, agreement, plan or arrangement to which Liens (except for Permitted Liens) on the Company assets of Inovio or any of its subsidiaries is a party as of the date of this Agreement, including but not limited Subsidiaries relating to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected attributable to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeTaxes.
(viiig) Neither the Company Inovio nor any of its subsidiaries Subsidiaries is, nor has filed been at any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of time, a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property "United States Real Property Holding Corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xih) Neither the Company Inovio nor any of its subsidiaries Subsidiaries (a) has ever been a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Inovio), (b) owes any amount under, or is a party to, any Tax sharing, indemnification or allocation agreement (other then between or among Inovio and any of its Subsidiaries), (c) has any liability for the Taxes of any person (other than Inovio or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(i) Neither Inovio nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (xa) in the two years prior to the date of this Agreement or (yb) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(j) Inovio has made available to VGX true and complete copies of (i) income and sales tax audit reports, statements of deficiencies, and closing or other agreements relating to Inovio's or any Subsidiary's Taxes, and (ii) all federal, state and local income or franchise tax returns for Inovio and all its Subsidiaries for all periods ending on or before the date of this Agreement.
(k) There are no Tax-sharing agreements or similar arrangements (including Tax indemnity arrangements) with respect to or involving Inovio or any Subsidiaries other than this Agreement.
(l) Neither Inovio nor any Subsidiary has participated in (i) any "tax shelter" within the meaning of Section 6111 (as in effect prior to the enactment of P.L. 108-357 or any comparable laws of jurisdictions other than the United States, or (ii) a reportable transaction as described in U.S. treasury regulations promulgated under Section 6011 of the Code or any comparable laws of jurisdictions other than the United States.
(m) Based on good faith interpretations of Code Section 409A and IRS guidance thereunder, to Inovio's Knowledge, neither Inovio nor any Subsidiary has, since October 3, 2004, (i) granted to any person an interest in a nonqualified deferred compensation plan (as defined in Code Section 409A(d)(1)) which interest has been or, upon the lapse of a substantial risk of forfeiture with respect to such interest, will be subject to the Tax imposed by Code Sections 409A(a)(1)(B) or (b)(4)(A), or (ii) modified the terms of any nonqualified deferred compensation plan in a manner that could cause an interest previously granted under such plan to become subject to the Tax imposed by Code Sections 409A(a)(1)(B) or (b)(4).
(n) Neither Inovio nor any Subsidiary will be required to include any material item of income in, or exclude any material item of deduction from, its taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) adjustment under Code Section 481 with respect to a change in method of accounting for a taxable period ending on prior to the Closing Date, (ii) "closing agreement" as described in Code Section 7121 (or any corresponding state, local or foreign Legal Requirement), (iii) intercompany transactions or any excess loss account described in the United States Treasury Regulations under Code Section 1502 (or any corresponding state, local or foreign Legal Requirements that, in either case, is attributable to transactions or other events occurring prior to the Closing Date), (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.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Inovio Biomedical Corp), Merger Agreement (Inovio Biomedical Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have (a) timely filed all material U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to any and all Taxes concerning or attributable to the Company or any of its Subsidiaries or their respective operations and such Returns are true and correct and have been completed in accordance with applicable Legal Requirements in all material respects and (b) timely paid all material Taxes required to be filed by the Company paid and each of its subsidiaries with paid or withheld (and timely paid over any Tax authority, except such Returns which are not material withheld amounts to the Company. The Company and each of its subsidiaries have paid appropriate Governmental Entity) all Taxes shown required to be due on such Returnspaid or withheld with respect to their employees and other third parties.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries Subsidiaries has been delinquent in the payment of any material Tax, nor is there any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iviii) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(iv) Neither the Company nor any of its Subsidiaries has any material liabilities for unpaid Taxes which have not been accrued or reserved on the Company Financials, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has incurred any liability for Taxes since the date of the Company Balance Sheet other than in the ordinary course of business.
(v) Neither the Company nor any of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its subsidiaries owe any amount under such agreement, (c) any liability for the Taxes of any person (other than Company or any of its Subsidiaries), under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law including any arrangement for group or consortium Tax relief or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(vi) No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries Subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which No claim has ever been made by an authority in a jurisdiction where the Company or any of its subsidiaries is a party as of the date of this Agreement, including but Subsidiaries does not limited to the provisions of this Agreement, covering any employee or former employee of file Tax Returns that the Company or any of its subsidiaries that, individually Subsidiaries is or collectively, would reasonably may be expected subject to give rise to the payment of any amount taxation by that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codejurisdiction.
(viii) Neither the Company nor any of its subsidiaries Subsidiaries has filed any consent agreement constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) 355 of the Code.
(ix) owned by None of the Company or any of its subsidiaries.
(ix) Neither Subsidiaries has engaged in a reportable transaction within the Company nor any meaning of its subsidiaries Treasury Regulation Section 1.6011-4(b), including a transaction that is party the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or has any obligation under any taxother form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-sharing, tax indemnity or tax allocation agreement or arrangement4(b)(2).
(x) None The Company is in compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (a “Tax Incentive”) and the consummation of the Company's or its subsidiaries' assets are tax exempt use property within transactions contemplated by this Agreement will not have any material adverse effect on the meaning continued validity and effectiveness of Section 168(h) of the Codeany such Tax Incentive.
(xi) Neither the Company nor any of its subsidiaries has constituted either Subsidiaries is subject to Tax in any jurisdiction other than its country of incorporation or formation by virtue of having a "distributing corporation" permanent establishment or other place of business or a "controlled corporation" material source of income in a distribution that jurisdiction.
(xii) The prices for any property or services (or for the use of stock qualifying any property) provided by or to the Company or any of its Subsidiaries are arm’s length prices for tax-free treatment purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) 482 of the Code) in conjunction with the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
Tax Returns and Audits. (i) The Company has prepared and each of its subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"“Tax Returns”) relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries such Tax Returns are true and correct in all material respects and have been completed in accordance with any Tax authority, except such Returns which are not applicable Legal Requirements in all material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnsrespects.
(ii) The Company and each of its subsidiaries as of the Effective Time will have has paid or withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material paid or withheld and have paid over to the Companyappropriate Tax authority all such Taxes.
(iii) Neither the The Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries not executed any unexpired outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company has no Knowledge that any such action or proceeding is being contemplated. There is no Tax deficiency outstanding, assessed or proposed against the Company. No claim has ever been made by any Tax authority in a jurisdiction in which it does not file Tax Returns that the Company is or may be subject to taxation by that jurisdiction. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes.
(v) No material adjustment relating to any Returns filed by the The Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability no liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 the Balance Sheet Date other than in the ordinary course of business or in connection with the operation of transactions contemplated by this Agreement.
(vi) There are no Liens on the business assets of the Company and its subsidiaries in the ordinary courserelating to or attributable to Taxes other than Permitted Liens.
(vii) There The Company is no contractnot, agreementnor has been during the five-year period ending on the Closing Date, plan or arrangement to which a “United States Real Property Holding Corporation” within the Company or any meaning of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(mSection 897(c)(2) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither The Company (a) has never been a member of an affiliated group (within the Company nor meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) does not owe any amount under any Tax sharing, indemnification or allocation agreement, (c) has no liability for the Taxes of its subsidiaries any Person (other than Company) 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, or (d) has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply not been a party to any disposition of joint venture, partnership or other agreement that is treated as a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariespartnership for Tax purposes.
(ix) Neither the The Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code during the two-year period ending on the Closing Date.
(x) The Company has delivered or made available to Parent or its legal counsel, copies of all Tax Returns for the Company filed since July 28, 2006, other than immaterial information Tax Returns (e.g., Forms W-2 and 1099).
(xi) The Company has not engaged in any reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the two years same or substantially similar to one of the types of transactions that the IRS has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from taxable income for any Tax period or portion thereof after the Closing as a result of (a) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the date Closing, (b) closing agreement under Section 7121 of the Code executed prior to the Closing, (c) deferred inter-company gain or excess loss account under applicable tax regulations issued by the IRS (“Treasury Regulations”) under Section 1502 of the Code in connection with a transaction consummated prior to the Closing (or in the case of each of (a), (b) and (c), under any similar provision of applicable law), (d) installment sale or open transaction disposition consummated prior to the Closing or (e) prepaid amount received prior to the Closing.
(xiii) The Company is in full compliance with all terms and conditions of any applicable Tax exemption, Tax relief, Tax holiday or other Tax reduction agreement, order or legislative provision (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xiv) The Company is not and has never been a resident for any Tax purposes or (y) otherwise subject to Tax in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within any country other than the meaning of Section 355(e) of the Code) in conjunction with the MergerUnited States.
Appears in 2 contracts
Samples: Merger Agreement (Volcano Corp), Merger Agreement (Volcano Corp)
Tax Returns and Audits. (i) The Company Parent and each of its subsidiaries have timely filed (taking into account applicable extensions) all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") Returns relating to Taxes required to be filed by the Company Parent and each of its subsidiaries with any Tax authority, except such Returns which authority and are not true and correct in all material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due respects on such Returns.
(ii) The Company Parent and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, outstanding which has been proposed or assessed in writing against the Company Parent or any of its subsidiaries, nor has the Company Parent or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax other than the automatic extension arising from the filing of a Return after its due date.
(iv) No To Parent's knowledge, no audit or other examination of any Return of the Company Parent or any of its subsidiaries by any Tax authority is presently in progress, . Neither Parent nor has the Company or any of its subsidiaries has been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company Parent or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company Parent or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Parent nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Parent Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the CompanyParent, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Parent Balance Sheet in connection with the operation of the business of the Company Parent and its subsidiaries in the ordinary coursecourse of business.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Parent is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Parent or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company Parent nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesParent.
(ix) Neither the Company Except for any such agreement or arrangement solely between Parent and its subsidiaries, neither Parent nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) Parent and its subsidiaries have not been and will not be required to include any material adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the CompanyParent's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Neither the Company nor The Parent Disclosure Letter lists (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by Parent or any of its subsidiaries has constituted either a "distributing corporation" with any Tax authority and (C) any expatriate programs or a "controlled corporation" in a distribution policies affecting Parent or any of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerits subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Triquint Semiconductor Inc), Agreement and Plan of Reorganization (Sawtek Inc \Fl\)
Tax Returns and Audits. In each case except as set forth in Part ---------------------- 2.9 of the Company Disclosure Letter:
(i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the or on behalf of Company and each of its subsidiaries with any Tax authority, except such Returns which are not true, correct and complete in all material to the Company. The respects, and Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.;
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.;
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.;
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.;
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.;
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementparty, including but not limited to the provisions of this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There ; there is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.;
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.Company;
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.arrangement among members of an affiliated group other than the affiliated group that includes the Company on the date immediately preceding the Closing Date;
(x) None Except as may be required as a result of the Company's Merger, Company and its subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or its subsidiaries' assets are tax exempt use property within the meaning of portion thereof) pursuant to Section 168(h) 481 or Section 263A of the Code.Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing;
(xi) Neither the Company nor any has made available to Parent or its legal or accounting representatives copies of all foreign, federal and state income tax and all state sales and use tax Returns for Company and each of its subsidiaries has constituted either a filed for all open periods; and
(xii) There are no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other Encumbrances of any sort (collectively, "distributing corporation" Liens") on the assets of Company or a "controlled corporation" in a distribution of stock qualifying any subsidiary relating to or attributable to Taxes, other than Liens for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerTaxes not yet due and payable.
Appears in 2 contracts
Samples: Merger Agreement (Onsale Inc), Merger Agreement (Egghead Com Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries Subsidiaries have timely filed all material federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS"including amendments thereto) relating to any and all Taxes (“Tax Returns”) required to be filed by any of them and have paid, or have adequately reserved (in accordance with GAAP) for the Company and each of its subsidiaries with any Tax authoritypayment of, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheldpaid, except and the most recent financial statements contained in the SEC Reports reflect an adequate reserve (in accordance with GAAP) for all Taxes payable by the Company and its Subsidiaries through the date of such financial statements. No material deficiencies for any Taxes which are not material have been asserted or assessed, or to the Knowledge of the Company.
(iii) Neither the Company nor any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed proposed, against the Company or any of its subsidiariesSubsidiaries that are not subject to adequate reserves (in accordance with GAAP), nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(ivii) The Company and each of its Subsidiaries have timely paid or withheld with respect to their Employees (and paid over any amounts withheld to the appropriate Taxing authority) all federal, state, provincial and foreign income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other similar Taxes required to be paid or withheld.
(iii) No audit or other examination of any material Tax Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified in writing of any request for such an audit or other examination.
(iv) The Company has made available to Parent or its legal counsel, copies of all material Tax Returns for the Company and each of its Subsidiaries for all years for which the applicable statute of limitations has not expired.
(v) No material adjustment relating to any Returns filed by Neither the Company or nor any of its subsidiaries Subsidiaries is, nor has been proposed in writing formally or informally by at any Tax authority to time, a “United States Real Property Holding Corporation” within the Company or any meaning of its subsidiaries or any representative thereofSection 897(c)(2) of the Code.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (xA) in the two years prior to the date of this Agreement or (yB) in a distribution which could otherwise constitute constitutes part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with that includes the Merger.
(vii) Neither the Company nor any of its Subsidiaries has engaged in a “reportable transaction,” as set forth in Treas. Reg. § 1.6011-4(b), or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation or other form of published guidance as a “listed transaction,” as set forth in Treas. Reg. § 1.6011-4(b)(2).
Appears in 2 contracts
Samples: Merger Agreement (Globalive Communications Corp.), Merger Agreement (Yak Communications Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company and each of its subsidiaries Subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries Subsidiaries with any Tax authorityauthority prior to the date hereof, except such Returns which that are not material to the CompanyCompany and its Subsidiaries. All such Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries Subsidiaries have paid all Taxes shown to be due and payable on such Returns.
(ii) The All Taxes that the Company and each of its subsidiaries as of the Effective Time will Subsidiaries are required by law to withhold or collect have been duly withheld with respect to its employees all federal or collected, and state income taxes, Taxes pursuant have been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Company and its Subsidiaries have not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the knowledge of the Company, no audit or other examination of any Return of the Company or any of its subsidiaries Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company, any Subsidiary of the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor not any of its subsidiaries has Subsidiaries have any liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries Subsidiaries in the ordinary coursecourse of business, none of which is material to the business, results of operations or financial condition of the Company and its Subsidiaries or, if any such amount is material, it has been accrued on the books and records of the Company in accordance with U.S. GAAP.
(vii) There is no contract, agreement, plan or arrangement to which the The Company or any of its subsidiaries is a party as of the date of this Agreement, including but has not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code taken or agreed to have Section 341(f)(2) of the Code apply to take any disposition of a subsection action not provided for in this Agreement (f) asset (as defined in Section 341(f)(4) of the Code) owned by nor does the Company have knowledge of any fact or any of its subsidiaries.
(ixcircumstance whether or not specified or provided for in this Agreement) Neither that is reasonably likely to prevent the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property Merger from qualifying as a “reorganization” within the meaning of Section 168(h368(a) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the Company. All such Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries have has paid all Taxes shown to be due and payable on such Returns. Each member of the LLC and each stockholder of AII have filed individual Returns as and when required with respect to their ownership of LLC and AAI and has paid all Taxes shown to be due and payable on such Returns.
(ii) The All Taxes that the Company is required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Company (or in the Company case of LLC or AAI, any LLC member or AAI stockholder) has not been delinquent in the payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company (or any of its subsidiariessuch person), nor has the Company (or any of its subsidiaries such person) executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the knowledge of the Company and the Stockholder, no audit or other examination of any Return of the Company (or any of its subsidiaries LLC member or AAI stockholder) by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries the Stockholder been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company (or any of its subsidiaries LLC member or AAI stockholder) has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the The Company nor any of its subsidiaries has any no liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Audited Financial Statements or the Stub Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business, none of which is material to the business, results of operations or financial condition of the Company.
(vii) There is no contractNeither the Company nor the Stockholder has taken any action and does not know of any fact, agreement, plan or arrangement other circumstance that is reasonably likely to which prevent the Company or any Business Combination from qualifying as a reorganization within the meaning of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(mSection 368(a) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither No transaction or arrangement between a CI company and any person with whom the Company nor any CI company was not dealing at arm’s length within the meaning of its subsidiaries the Income Tax Act (Canada) involving the acquisition, delivery, disposition or provision of property or services or the right to use property or services, took place for consideration that is other than the fair market value for such property, services or right and such transaction or arrangement was made on arm’s length terms and conditions. Each CI company has filed any consent agreement under Section 341(fmade or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Code or agreed Income Tax Act (Canada) with respect to have Section 341(f)(2) all transactions and arrangements between such CI company and any non-resident person, within the meaning of the Code apply to any disposition of a subsection Income Tax Act (f) asset (as defined in Section 341(f)(4) Canada), with whom such CI company was not dealing at arm’s length, within the meaning of the Code) owned by the Company or any of its subsidiariesIncome Tax Act (Canada).
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning CI companies is subject to a liability for Taxes of Section 168(h) any other person, including without limitation, liability arising under section 160 of the Code.
Income Tax Act (xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 Canada). None of the Code CI companies has (xa) in the two years prior made any payment, (b) is obligated to the date of this Agreement make any payment, or (yc) is a party to any agreement under which it could be obligated to make any payment, that will not be deductible in a distribution which could otherwise constitute part computing its income under the Income Tax Act (Canada) by virtue of a "plan" or "series or related transactions" (within the meaning of Section 355(e) section 67 of the Code) in conjunction with the MergerIncome Tax Act (Canada).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Endeavor Acquisition Corp.)
Tax Returns and Audits. (ia) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") and/or extensions relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(iib) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act Act, and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iiic) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivd) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(ve) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vif) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet balance sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the fiscal year end in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(viig) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan plan, or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiih) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ixi) Neither the Company nor any of its subsidiaries is party to or has any obligation under any taxTax-sharing, tax Tax indemnity or tax Tax allocation agreement or arrangement.
(xj) None of the Company's or its subsidiaries' assets are tax tax-exempt use property within the meaning of Section 168(h) of the Code.
(xik) Neither the Company nor any has (a) never been a member of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" an affiliated group (within the meaning of Code Section 355(e1504(a)) filing a consolidated federal income Tax Return (other than a group the common PETREX of which was Company), (b) with respect to the CodeTaxes of any person (other than Company or any of its subsidiaries) in conjunction with the Merger.(i)
Appears in 1 contract
Samples: Merger Agreement (Petrex Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not not, individually or in the aggregate, material to the CompanyCompany and such returns are true and correct in all material respects and have been completed in accordance with applicable law. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees or other third parties all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not not, individually or in the aggregate, material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No Except as stated in Section 2.16 of the Company Schedule, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing proposed, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet balance sheet dated March 31, 2000 in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December March 31, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed is liable for any consent agreement material Taxes of any other person under Section 341(fTreasury Regulation 1.1502-6 (or any similar provision of state, local or foreign law) other than a member of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset "affiliated group" (as defined in Section 341(f)(41504(a) of the Code) owned by of which the Company or any of its subsidiaries.
is the common parent (ix) the "Company Group"). Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement, including any partnership agreement or other arrangement that could be treated as a partnership for a Tax purpose other than with a member of the Company Group.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xiviii) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" distributed the stock of any corporation in a distribution transaction satisfying the requirements of stock qualifying for tax-free treatment under Section 355 of the Code (x) in Code. The stock of neither the two years prior to the date Company nor any of this Agreement or (y) its subsidiaries has been distributed in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within transaction satisfying the meaning requirements of Section 355(e355 of the Code.
(ix) The Company is not and has never been a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Appnet Inc /De/)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company , and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its material subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its material subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its material subsidiaries, nor has the Company or any of its material subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its material subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its material subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its material subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its material subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (McAfee Associates Inc)
Tax Returns and Audits. Except as set forth in Section 2.13(b) in the Disclosure Schedule:
(i) The Company and each of its subsidiaries the Polish Subsidiary have (a) prepared and timely filed all federal, state, local and foreign returns, estimates, information statements and reports required to be filed on or before the Closing Date ("RETURNSReturns") relating to any and all Taxes required concerning or attributable to the Company or the Polish Subsidiary or their operations occurring before the Closing Date and such Returns are true and correct and have been or will be filed completed in accordance with applicable law and (b) timely paid in full all Taxes due and payable by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such ReturnsPolish Subsidiary.
(ii) The Company and each of its subsidiaries as of the Effective Time will Polish Subsidiary have withheld or paid to the appropriate authorities or depositories, with respect to its employees their Employees and other third parties, all federal federal, state and state foreign income taxestaxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Companyso withheld or paid.
(iii) Neither the Company nor its Polish Subsidiary is now delinquent in the payment of any of its subsidiaries has Tax, nor is there any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiaries, nor has Polish Subsidiary. Neither the Company or any of nor its subsidiaries Polish Subsidiary has executed any unexpired waiver of any statute of limitations that has not expired on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Polish Subsidiary is presently in progress, nor has the Company or any of its subsidiaries Polish Subsidiary been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries Polish Subsidiary has any liability for any material unpaid Taxes as of the Balance Sheet Date which has not been accrued for or reserved on the Company Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than EXECUTION VERSION Company and its Polish Subsidiary have not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 the Balance Sheet Date other than in connection with the operation ordinary course of the business of the business.
(vi) The Company and its subsidiaries in the ordinary coursePolish Subsidiary have provided to Parent or its legal counsel copies of all their Returns filed for all periods since their inception.
(vii) There is are (and immediately following the Effective Time there will be) no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company or its Polish Subsidiary relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. The Company has no Knowledge of any basis for the assertion of its subsidiaries thatany claim relating or attributable to Taxes, individually or collectivelywhich, if adversely determined, would reasonably be expected to give rise to result in any Lien on the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) assets of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeCompany.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax is treated as "tax-exempt use property property," within the meaning of Section 168(h) of the Code.
(xiix) Neither the Company nor its Polish Subsidiary has (a) ever been a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return, (b) ever been a party to any Tax sharing, indemnification or allocation agreement, (c) no liability for the Taxes of any Person (other than Company or its subsidiaries Polish Subsidiary), under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or agreement, or otherwise and (d) never been a party to any joint venture, partnership, limited liability company or other arrangement that could be treated as a partnership for Tax purposes.
(x) The Company's and its Polish Subsidiary's Tax basis in their assets for purposes of determining their future amortization, depreciation and other income Tax deductions is accurately reflected on their Tax Books and Records.
(xi) The Company is not and has not been, at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xii) No adjustment relating to any Return that has been filed by the Company or its Polish Subsidiary and for which the period for the making of such adjustment has not expired by the application of a statute of limitation, has been proposed in writing to the Company by any tax authority.
(xiii) Neither the Company nor its Polish Subsidiary has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two (2) years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xiv) Neither the Company nor its Polish Subsidiary has engaged in a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2). EXECUTION VERSION
(xv) Neither the Company nor its Polish Subsidiary has ever received written notice of a claim made by a Tax authority in a jurisdiction where it does not file Returns that it is or may be subject to taxation by that jurisdiction.
(xvi) Neither the Company nor its Polish Subsidiary has ever granted a power of attorney (or similar authority) as to any matters regarding Taxes that will have effect as of the Effective Time.
(xvii) Neither the Company nor its Polish Subsidiary 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 (A) a change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date, (B) any "closing agreement" as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Tax law), (C) any intercompany transaction or any excess loss account as described in Treasury Regulation Section 1.1502-19 (or any corresponding or similar provision or administrative rule of federal, state, local or foreign Tax law), (D) any installment sale or open transaction made on or prior to the Closing Date or (E) as a result of any prepaid amount received on or prior to the Closing Date.
(xviii) Section 2.13(b) of the Disclosure Schedule sets forth, by the Tax years in which they arose, the amounts of any unused net operating loss or net capital loss allocable to each the Company and its Polish Subsidiary as of December 31, 2003. Prior to the Effective Time of the Merger, the Company will not have undergone an "ownership change" under Section 382(g) of the Code.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2(a)(xvii) hereto:
(i) The Company and each of its subsidiaries Affiliated Companies have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries Affiliated Companies with any Tax authority, except authority prior to the date hereof. All such Returns which are not true, correct and complete in all material to the Companyrespects. The Company and each of its subsidiaries Affiliated Companies have paid all Taxes shown to be due on such Returns, except for such Taxes as are being disputed in good faith.
(ii) The Company All Taxes that the Affiliated Companies are required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Affiliated Companies have not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesAffiliated Companies, nor has have the Company or any of its subsidiaries Affiliated Companies executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries Affiliated Companies by any Tax authority is presently in progress, nor has have the Company or any of its subsidiaries Affiliated Companies been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Affiliated Companies has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Affiliated Companies or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any The Affiliated Companies have no liability for any material unpaid Taxes which has have not been accrued for or reserved on Omnia Luo’s balance sheets included in the Company Balance Sheet in accordance with GAAPU.S. GAAP Financial Statements for the most recent fiscal year ended, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries Affiliated Companies in the ordinary course.
(vii) There course of business, none of which is no contractmaterial to the business, agreement, plan results of operations or arrangement to which the Company or any of its subsidiaries is a party as financial condition of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeAffiliated Companies.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company and each of its subsidiaries Subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes Tax Returns required to be filed by the Company and each of or its subsidiaries Subsidiaries with any Tax authorityauthority prior to the date hereof, except for such Tax Returns which that are not material to the CompanyCompany or its Subsidiaries. All such Tax Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries Subsidiaries have paid all Taxes shown to be due and payable on such Tax Returns.
(ii) The All Taxes that the Company and each of its subsidiaries as of the Effective Time will Subsidiaries are required by law to withhold or collect have been duly withheld with respect to its employees all federal or collected and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper Governmental Entities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Company and its Subsidiaries have not been delinquent in the Company payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has have the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax. The Company and its Subsidiaries have complied in all material respects with all Legal Requirements with respect to payments made to third parties and the withholding of any payment of withheld Taxes and has timely withheld from employee wages and other payments and timely paid over in full to the proper taxing authorities all amounts required to be so withheld and paid over for all periods.
(iv) No To the knowledge of the Company, (A) no audit or other examination of any Tax Return of the Company or any of and its subsidiaries Subsidiaries by any Tax authority is presently in progress, nor (B) has the Company or any of its subsidiaries Subsidiary been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Tax Returns filed by the Company or any of its subsidiaries Subsidiary has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Subsidiary or any representative thereof.
(vi) Neither the The Company nor any of and its subsidiaries has any Subsidiaries have no liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPCompany’s Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business.
(vii) There is no contractThe Company has not taken any action and does not know of any fact, agreement, plan or arrangement other circumstance relating to which the Company or any of its subsidiaries Merger that is a party as of reasonably expected to prevent the date of this AgreementMergers from qualifying, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is as a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to transaction described in Section 4999 351 of the Code.
(viii) Neither No current Member of the Company nor any of its subsidiaries has filed any consent agreement is a foreign person subject to withholding under Section 341(f) 1445 of the Code and the regulations promulgated thereunder or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesis otherwise subject to another exemption from withholding thereunder.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cullen Agricultural Holding Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes (“Returns”) required to be filed by the Company and each of its subsidiaries with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the Company. All such Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries have has paid all Taxes shown to be due and payable on such Returns. Each member of the LLC and each stockholder of AAI have filed individual Returns as and when required with respect to their ownership of LLC and AAI and has paid all Taxes shown to be due and payable on such Returns.
(ii) The All Taxes that the Company is required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither The Company (or in the Company case of LLC or AAI, any LLC member or AAI stockholder) has not been delinquent in the payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company (or any of its subsidiariessuch person), nor has the Company (or any of its subsidiaries such person) executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the knowledge of the Company and the Stockholder, no audit or other examination of any Return of the Company (or any of its subsidiaries LLC member or AAI stockholder) by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries the Stockholder been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company (or any of its subsidiaries LLC member or AAI stockholder) has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the The Company nor any of its subsidiaries has any no liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Annual Financial Statements or the Stub Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business, none of which is material to the business, results of operations or financial condition of the Company.
(vii) There is no contractNeither the Company nor the Stockholder has taken any action and does not know of any fact, agreement, plan or arrangement other circumstance that is reasonably likely to which prevent the Company or any Merger and each Canada Acquisition from qualifying as a reorganization within the meaning of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(mSection 368(a) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither No transaction or arrangement between a CI company and any person with whom the Company nor any CI company was not dealing at arm’s length within the meaning of its subsidiaries the Income Tax Act (Canada) involving the acquisition, delivery, disposition or provision of property or services or the right to use property or services, took place for consideration that is other than the fair market value for such property, services or right and such transaction or arrangement was made on arm’s length terms and conditions. Each CI company has filed any consent agreement under Section 341(fmade or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Code or agreed Income Tax Act (Canada) with respect to have Section 341(f)(2) all transactions and arrangements between such CI company and any non-resident person, within the meaning of the Code apply to any disposition of a subsection Income Tax Act (f) asset (as defined in Section 341(f)(4) Canada), with whom such CI company was not dealing at arm’s length, within the meaning of the Code) owned by the Company or any of its subsidiariesIncome Tax Act (Canada).
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning CI companies is subject to a liability for Taxes of Section 168(h) any other person, including without limitation, liability arising under section 160 of the Code.
Income Tax Act (xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 Canada). None of the Code CI companies has (xa) in the two years prior made any payment, (b) is obligated to the date of this Agreement make any payment, or (yc) is a party to any agreement under which it could be obligated to make any payment, that will not be deductible in a distribution which could otherwise constitute part computing its income under the Income Tax Act (Canada) by virtue of a "plan" or "series or related transactions" (within the meaning of Section 355(e) section 67 of the Code) in conjunction with the MergerIncome Tax Act (Canada).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Endeavor Acquisition Corp.)
Tax Returns and Audits. (i) The Each of the Company and each of its subsidiaries have has timely filed all federal, state, local local, and foreign returns, estimates, information statements statements, and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The All such Returns were correct and complete in all material respects. Each of Company and each of its subsidiaries have has paid all Taxes due and owing by the Company and its subsidiaries (whether or not shown on any Tax Return). None of the Company and its subsidiaries currently is the beneficiary of any extension of time within which to be due on such Returnsfile any Return.
(ii) The Except as is not material to the Company, each of the Company and each of its subsidiaries will have withheld as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA, and other Taxes required to be withheld, except such Taxes which are .
(iii) Except as is not material to the Company.
(iii) Neither , neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed proposed, or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No Except as is not material to the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has have not been accrued for or reserved against on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any except liability for unpaid Taxes that may which have accrued since December 31, 1999 in connection with the operation of the business date of the Company and its subsidiaries Balance Sheet in the ordinary coursecourse of business.
(vi) None of the Company's assets is treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(vii) There is no contract, agreement, plan plan, or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not for which a deduction will be deductible pursuant to disallowed by reason of Sections 280G, 404 404, or 162(m162(b) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 through (o) of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its is subsidiaries.
(ix) Neither The Company is not, and has not been at any time, a "United States real property holding corporation" within the Company nor any meaning of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementSection 897(c)(2) of the Code.
(x) None of the Company's Company and its subsidiaries is a party to any tax allocation or sharing agreement. None of the Company and its subsidiaries' assets are tax exempt use property subsidiaries (A) has been a member of an Affiliated Group (within the meaning of Section 168(h1504(a) of the Code, or any similar group defined under a similar provision of state, local, or foreign law) filing a consolidated federal Return (other than a group the common parent of which was the Company) or (B) has any liability for the taxes of any person (other than any of the Company and its subsidiaries) under Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local, or foreign law) as a transferee or successor, by contract, or otherwise.
(xi) Neither The Company has furnished Parent with a list of all federal, state, local, and foreign Tax Returns filed with respect to the Company and its subsidiaries for taxable periods ended on or after October 31, 1999, which list indicates those Tax Returns that have been audited. The Company has delivered to Parent correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by the Company and its Subsidiaries since October 31, 1999.
(xii) To the best of the Company's knowledge, neither the Company nor any of its subsidiaries has constituted either 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 "distributing corporation" result of any (A) change in method of accounting for a taxable period ending on or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date Closing Date; (B) "closing agreement" as described in Code ss. 7121 (or any corresponding or similar provision of this Agreement state, local or foreign income Tax law) executed on or prior to the Closing Date; (C) intercompany transactions or any excess loss account described in Treasury Regulations under Code ss. 1502 (or any corresponding or similar provision of state, local or foreign income Tax law); (D) installment sale or open transaction disposition made on or prior to the Closing Date; or (yE) in a distribution which could otherwise constitute part of a "plan" prepaid amount received on or "series or related transactions" (within prior to the meaning of Section 355(e) of the Code) in conjunction with the MergerClosing Date.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.10(b):
(i) The As of the Effective Time, the Company has prepared and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports required to be filed ("RETURNSReturns") relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company and each of its subsidiaries as As of the Effective Time will have Time, the Company: (a) has paid or accrued all Taxes it is required to pay or accrue; and (b) has withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Companywithheld as of that date.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extended the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the The Company has no liabilities for unpaid federal, state, local or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid foreign Taxes which has have not been accrued for or reserved on against in the Company Balance Sheet in accordance with GAAPFinancials, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation date of the business of the Company and its subsidiaries Interim Financials other than in the ordinary coursecourse of business consistent with past practice.
(vi) The Company has provided to Parent copies of all foreign, federal and state income and all state sales and use Returns for all periods since the date of Company's Organization.
(vii) There are (and as of immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of the Company relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable as of such date.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of the Company.
(ix) None of the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementparty, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible by the Company as an expense under applicable law pursuant to Sections Section 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiixi) Neither the The Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ixxii) Neither The Company is not a party to a tax sharing, indemnification or allocation agreement nor does the Company nor owe any of its subsidiaries is party to or has any obligation amount under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
such agreement. The Company has not been a member of an affiliated group (x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h1504(a) of the Code) filing a consolidated income tax return.
(xiii) The Company is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xixiv) Neither No adjustment or deficiency relating to any Return filed or required to be filed by the Company nor has been proposed formally or, to the knowledge of the Company, informally by any Tax authority to the Company or any representative thereof.
(xv) The Company has not distributed the stock of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" any corporation in a distribution transaction satisfying the requirements of stock qualifying for tax-free treatment under Section 355 of the Code Code.
(xxvi) in the two years prior The foregoing notwithstanding, there will be a cancellation of indebtedness income when Parent Common Stock is issued to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerConverted Creditors.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Zapworld Com)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, forms, estimates, information statements and reports ("RETURNS"“Returns”) relating to Taxes and required under applicable Legal Requirements to be filed by the Company and each of its subsidiaries with any Governmental Entity that is a Tax authority, except any such Returns which are not not, individually or in the aggregate, material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) . All Returns were complete and accurate in all material respects and have been prepared in material compliance with all applicable Legal Requirements. The Company’s net operating losses and other Tax attributes are accurately reflected on the Company’s Returns and are not currently subject to any limitation under Sections 382 or 383 of the Code. The Company has made available to Holdco correct and each complete copies of all Returns, examination reports, closing agreements and statements of deficiencies assessed against or agreed to by the Company or any of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Taxes. Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extension of any the period for the assessment or collection of any Tax.
(iv) . No audit audit, or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progressprogress nor, to the knowledge of the Company, pending, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) . No material adjustment relating to any Returns filed or required to be filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) . Neither the Company nor any of its subsidiaries has any liability Liability for any material unpaid Taxes (whether or not shown to be due on any Return) which has not been accrued for or reserved on the Company Company’s Interim Balance Sheet in accordance with GAAP, whether asserted or unasserted, whether or not shown on any Return, contingent or otherwise, which is material to the Company, other than any liability Liability for unpaid Taxes that may have accrued since December 31, 1999 the Interim Balance Sheet Date in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) . There is are no contract, agreement, plan or arrangement to which claims for Taxes being asserted against the Company or any of its subsidiaries is a party as that have resulted in, and there are no, Encumbrances with respect to Taxes on any of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company or any of its subsidiaries thatsubsidiaries, other than Encumbrances which are not, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement aggregate, material, or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergercustomary Encumbrances for Taxes not yet due and payable.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 2.11 of the Company Disclosure Letter:
(i) The Company and each of its subsidiaries have has timely filed all federalFederal, state, local and foreign returns, estimates, information statements and reports (relating to Taxes ( "RETURNS") relating to Taxes required by applicable Tax law to be filed by the Company, except for any such failures to file that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. All Taxes owed by the Company and each of its subsidiaries with any Tax to a taxing authority, or for which the Company is liable, whether to a taxing authority or to other persons or entities under a Tax Agreement, as of the date hereof, have been paid and, as of the Effective Time, will have been paid, except for any such Returns which are failure to pay that could not material reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company has made (A) accruals for Taxes on the Company Balance Sheet and (B) with respect to periods after the date of the Company Balance Sheet, provisions on a periodic basis consistent with past practice on the Company's books and records or financial statements, in each case which are adequate to cover any Tax liability of its subsidiaries have paid all Taxes shown the Company determined in accordance with generally accepted accounting principles through the date of the Company Balance Sheet or the date of the provision, as the case may be, except where failures to make such accruals or provisions could not reasonably be due expected to have, individually or in the aggregate, a Material Adverse Effect on such Returnsthe Company.
(ii) The Except to the extent that any such failure to withhold could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, the Company and each of its subsidiaries as of the Effective Time will have has withheld with respect to its employees all federal Federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, proposed or assessed against the Company, except any such deficiency that, if paid, could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company has not executed or requested any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Federal or material state Tax.
(iv) No Federal or state Tax audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has and the Company or any of its subsidiaries has not been notified in writing of any request for such an Federal or material state Tax audit or other examination, except in all cases for Tax audits and other examinations which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(v) No material adjustment relating to any Returns filed by the The Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Internal Revenue Code of 1986, as amended (the "CODE"), or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(vi) The Company is not a party to (A) any agreement with a party other than the Company providing for the allocation or payment of Tax liabilities or payment for Tax benefits with respect to a consolidated, combined or unitary Return which Return includes or included the Company or any subsidiary or (B) any Tax Agreement other than any Tax Agreement described in (A).
(vii) The Company has not ever been a member of its subsidiariesan affiliated group of corporations within the meaning of Sections 1504 of the Code other than an affiliated group of which it was the common parent.
(viii) The Company has not agreed to make, and it is not required to make, any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise.
(ix) Neither The Company is not, and has not at any time within the Company nor any last five years been, a "UNITED STATES REAL PROPERTY HOLDING CORPORATION" within the meaning of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementSection 897(c)(2) of the Code.
(x) None of the Company's The Company has not made any payments, is obligated to make any payments, or its subsidiaries' assets are tax exempt use property within the meaning of is a party to any agreement that under certain circumstances could obligate it to make any payments, that will not be deductible under Section 168(h) 280G of the Code.
(xi) Neither The Company has federal and California net operating loss carryforwards, for tax return purposes, of $3,800,000 and $1,350,000, respectively, as of September 30, 1999.
(xii) The Company does not have any deferred intercompany gains as defined in the Company nor any of its subsidiaries has constituted either federal consolidated tax return regulations which, as a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 result of the Code (x) transactions contemplated herein, will result in the two years prior to the date recognition of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergertaxable income.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Company Schedule ----------------------
(i) The Company and each Subsidiary as of its subsidiaries the Effective Time will have timely prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to any and all Taxes required concerning or attributable to be filed by the Company and each Subsidiary or their operations and such Returns are true and correct and have been completed in accordance with applicable law. Notwithstanding the foregoing, no representation or warranty is hereby made regarding the availability of its subsidiaries with any Tax authority, except such Returns which are not material to attribute of the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnsor Subsidiary.
(ii) The Company and each of its subsidiaries Subsidiary as of the Effective Time Time: (A) will have paid or accrued all Taxes that they are required to pay or accrue and (B) will have withheld with respect to its their employees and all third parties all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material and have timely paid over to the Companyproper governmental authorities all amounts required to be withheld and paid over under all applicable laws.
(iii) Neither the Company nor Subsidiary has been delinquent in the payment of any of its subsidiaries has Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiary, nor has the Company or any of its subsidiaries Subsidiary executed any unexpired waiver of any statute of limitations on or extending extended the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiary is presently currently in progress, nor has the Company or any of its subsidiaries Subsidiary been notified of any request for such an audit or other examination.
(v) . No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries has been proposed (and no claim by a tax authority in writing formally or informally by any Tax authority to a jurisdiction in which the Company or any of its subsidiaries does not file returns that the Company or any of its subsidiaries may be subject to taxation by such jurisdiction) has been proposed formally or, to the knowledge of the Company, informally by any tax authority to the Company or any representative thereof.
(viv) Neither the Company nor any of its subsidiaries Subsidiary has any liability liabilities for any material unpaid federal, state, local and foreign Taxes for periods through the date of the Balance Sheet which has have not been accrued for or reserved on the Company Balance Sheet against in accordance with GAAPGAAP on the Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material and the Company has no knowledge of any basis for the assertion of any such liability attributable to the CompanyCompany or Subsidiary, other than their assets or operations. Since March 31, 2000, neither the Company nor Subsidiary has incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries other than in the ordinary coursecourse of business.
(vi) The Company has provided to Parent copies of all federal and material state income and all state sales and use Tax Returns that have been filed for all periods since the date of Company's incorporation.
(vii) There is are (and as of immediately following the Effective Date there will be) no liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") on the assets of the Company or Subsidiary relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company or Subsidiary.
(ix) None of the Company's or Subsidiary's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries Subsidiary that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections Section 280G, 404 or 162(m) G of the Code. There Notwithstanding the foregoing, no representation or warranty is no contracthereby made regarding the effect, agreementif any, plan on the deductibility of any payment covering any employee or arrangement to which former employee of the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as Subsidiary, of the date execution or operation of this Agreement to compensate any individual for excise taxes paid the Stock Restriction Agreements pursuant to Section 4999 of the Code6.3(r) hereof.
(viiixi) Neither the Company nor any of its subsidiaries Subsidiary has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesSubsidiary.
(ixxii) Neither the Company nor any of its subsidiaries (i) has ever been a member of an affiliated group filing a consolidated federal income Tax Return (other than a consolidated group the common parent of which is the Company), (ii) is a party to any Tax sharing or has Tax allocation agreement, arrangement or understanding, (iii) is liable for the Taxes of any obligation other person under Treasury Regulation Section 1.1502-6 (or any tax-sharingsimilar provision of state, tax indemnity local or tax allocation agreement foreign law), as a transferee or arrangementsuccessor, by contract or otherwise, and (iv) is a party to any joint venture, partnership or other arrangement that could be treated as a partnership for income Tax purposes.
(xxiii) None of the Company's or its subsidiaries' assets are tax exempt use The Company is not and has not been at any time, a "United States real property holding corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xixiv) The Company has no reason to believe that the Merger will fail to qualify as a reorganization within the meaning of Section 368(a) of the Code.
(xv) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (xi) in the two years prior to the date of this Agreement or (yii) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ibeam Broadcasting Corp)
Tax Returns and Audits. (i) The Each of the Company and each of its subsidiaries have has timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The Company and each for its Returns for its fiscal year ended May 31, 2003 for which an extension of time exists. All such Returns were correct and complete in all material respects. Each of the Company and its subsidiaries have has paid all Taxes due and owing by the Company and its subsidiaries (whether or not shown on any Tax Return). None of the Company and its subsidiaries currently is the beneficiary of any extension of time within which to be due on such Returnsfile any Return except as indicated in this Section 2.7(b)(i).
(ii) The Except as is not material to the Company, each of the Company and each of its subsidiaries will have withheld as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA, and other Taxes required to be withheld, except such Taxes which are .
(iii) Except as is not material to the Company.
(iii) Neither , neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No Except as is not material to the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has have not been accrued for or reserved against on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any except liability for unpaid Taxes that may which have accrued since December 31, 1999 in connection with the operation of the business date of the Company and its subsidiaries Balance Sheet in the ordinary coursecourse of business.
(vi) None of the Company's assets is treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not for which a deduction will be deductible pursuant to disallowed by reason of Sections 280G, 404 or 162(m162(b) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 through (o) of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its is subsidiaries.
(ix) Neither The Company is not, and has not been at any time, a "United States real property holding corporation" within the Company nor any meaning of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementSection 897(c)(2) of the Code.
(x) None of the Company's Company and its subsidiaries is a party to any tax allocation or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) sharing agreement. None of the Code.
(xi) Neither the Company nor any of and its subsidiaries (A) has constituted either been a "distributing corporation" or a "controlled corporation" in a distribution member of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" an Affiliated Group (within the meaning of Section 355(e1504(a) of the Code, or any similar group defined under a similar provision of state, local, or foreign law) in conjunction with filing a consolidated federal Return (other than a group the Mergercommon parent of which was the Company) or (B) has any liability for the taxes of any person (other than any of the Company and its subsidiaries) under Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Phazar Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except and all such Returns which returns are not true and correct in all material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returnsrespects.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ix) Neither Except as set forth on the Company Schedules, neither Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement and neither Company nor any of its subsidiaries has any liability or obligation under any such tax-sharing, tax indemnity or tax allocation agreement or arrangement. No liability (or any reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement (including under any such agreement or arrangement set forth on the Company Schedules) as a result of the Merger.
(x) Except as may be required as a result of the Merger, Company and its subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Neither the The Company nor Schedules list (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by Company or any of its subsidiaries has constituted either a "distributing corporation" with any Tax authority and (C) any expatriate programs or a "controlled corporation" in a distribution policies affecting Company or any of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerits subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Quantum Corp /De/)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The Company , and each of its subsidiaries have timely paid all Taxes shown to be due on such Returns.
(ii) The . Such Returns are true and correct and have been completed in accordance with applicable law. Except as is not material to the Company, the Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are withheld and have timely paid to the proper government authorities all amounts required to be withheld and paid. Except as is not material to the Company.
(iii) Neither , neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No . Except as is not material to the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No . Except as is not material to the Company, no adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither . Except as is not material to the Company, neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) . There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company. Neither the Company or nor any of its subsidiaries.
subsidiaries (ixi) has ever been a member of an affiliated group filing a consolidated federal income Tax Return (other than a consolidated group the common parent of which is the Company), (ii) is a party to any Tax sharing or Tax allocation agreement, arrangement or understanding, (iii) is liable for the Taxes of any other 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, and (iv) is a party to any joint venture, partnership or other arrangement that could be treated as a partnership for income Tax purposes. Neither the Company nor any of its subsidiaries is party to or and has never been at any obligation under any tax-sharingtime, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property a "United States Real Property Holding Corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. (iA) The Company and each of its subsidiaries have timely filed all federal, provincial, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The Company , and each of its subsidiaries have timely paid all Taxes shown to be due on such Returns.
(iiB) The Except as is not material to the Company, the Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all Canadian federal and provincial income taxes, all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are withheld in the United States and Canada.
(C) Except as is not material to the Company.
(iii) Neither , neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivD) No Except as is not material to the Company, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(vE) No Except as is not material to the Company, no adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(viF) Neither Except as is not material to the Company, neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(viiG) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the U.S. Tax Code.
(viiiH) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the U.S. Tax Code or agreed to have Section 341(f)(2) of the U.S. Tax Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the U.S. Tax Code) owned by the Company or any of its subsidiariesCompany.
(ixI) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity sharing or tax allocation agreement or arrangement.
(xJ) None The Canadian federal and provincial income and capital tax liabilities of the Company's or Company and its subsidiaries' assets are tax exempt use property within subsidiaries have been assessed by the meaning relevant taxing authorities and notices of Section 168(h) of assessment have been issued to each such entity by the Coderelevant taxing authorities for all taxation years up to and including the taxation year specified on Schedule 2.7.
(xiK) For purposes of the Income Tax Act (Canada) or any applicable provincial or municipal taxing statute, no persons or group of persons has ever acquired or had the right to acquire control of the Company or any of its subsidiaries.
(L) Neither the Company nor any of its subsidiaries has constituted either (except Simware Corp.) are "engaged in a trade or business within the United States" or have a "distributing corporation" or a "controlled corporationpermanent establishment" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the MergerUnited States.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and each of its subsidiaries have timely filed all required U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not true and correct in all material to the Company. The Company respects and each of its subsidiaries have been completed in accordance with applicable law and (b) timely paid all Taxes shown it is required to be due on such Returnspay.
(ii) The Company and each of its subsidiaries as of the Effective Time will have has paid or withheld with respect to its employees Employees and other third parties, all federal U.S. federal, state and state non-U.S. income taxestaxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution ActAct amounts, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be withheld, except and has timely paid over any such withheld Taxes which are not material to the Companyappropriate authorities.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax, nor is there any of its subsidiaries has any material Tax deficiency outstanding, assessed or, to the Company’s Knowledge, proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) . No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries has has, to Company’s Knowledge, been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof. No claim has ever been made in writing, or otherwise to the Company’s Knowledge, by an authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(viv) Neither As of the date of the Current Balance Sheet, the Company nor any of its subsidiaries has any liability had no liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation date of the business Current Balance Sheet other than in the ordinary course of business. The Company has identified all uncertain tax positions contained in all Tax Returns filed by the Company and its subsidiaries has established adequate reserves and made any appropriate disclosures in the ordinary courseFinancials in accordance with the requirements of Financial Interpretation No. 48 of FASB Statement No. 109.
(vi) The Company has made available to Parent or its legal counsel, copies of all material Tax Returns for the Company filed for all periods since its inception.
(vii) There is are no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company relating to or attributable to Taxes, other than Liens for Taxes not yet due and payable. The Company has no Knowledge of any basis for the assertion of its subsidiaries thatany claim relating or attributable to Taxes which, individually or collectivelyif adversely determined, would reasonably be expected to give rise to result in any Lien on the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) assets of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeCompany.
(viii) Neither The Company has (a) never been a member of an affiliated group (within the Company nor any meaning of its subsidiaries has filed any consent agreement under Section 341(fCode §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Code or agreed to have Section 341(f)(2Company), (b) of the Code apply never been a party to any disposition Tax sharing, indemnification, allocation or similar agreement, (c) no liability for the Taxes of a subsection any person or entity under Treasury Regulation § 1.1502-6 (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any similar provision of its subsidiariesstate, local or non-us law (including any arrangement for group or consortium relief or similar arrangement)), as a transferee or successor, by operation of law, by contract or agreement, or otherwise and (d) never been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) Neither the The Company nor has not been, at any of its subsidiaries is party to or has any obligation under any tax-sharingtime, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property a “United States Real Property Holding Corporation” within the meaning of Section 168(h897(c)(2) of the Code.
(xix) Neither the The Company nor any of its subsidiaries has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code Code.
(xxi) The Company has not engaged in a reportable transaction under Treas. Reg. § 1.6011-4(b), including a transaction that is the two years same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any taxable period or portion thereof after the Closing as a result of any (a) change in method of accounting made prior to the date Closing, (b) closing agreement under Section 7121 of the Code executed prior to the Closing, (c) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated prior to the Closing (or in the case of each of (a), (b) and (c), under any similar provision of applicable law), (d) installment sale or open transaction disposition consummated prior to the Closing or (e) prepaid amount received prior to the Closing.
(xiii) The Company uses the accrual method of accounting for tax purposes, or, in the case of SNAPin Software UK Limited, in accordance with UK GAAP (the historical cost basis of accounting).
(xiv) The Company is not subject to Tax in any jurisdiction other than its country of incorporation or formation by virtue of having a permanent establishment, place of business or source of income in that country.
(xv) The Company is in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (“Tax Incentive”), and the consummation of the transactions contemplated by this Agreement or will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(yxvi) The Company and its subsidiaries are in a distribution which could otherwise constitute part compliance in all material respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of a "plan" or "series or related transactions" (within contemporaneous documentation substantiating the meaning of Section 355(e) transfer pricing practices and methodology of the CodeCompany and its subsidiaries. The prices for any property or services (or for the use of any property) in conjunction with provided by or to the MergerCompany are arm’s length prices for purposes of the applicable transfer pricing laws.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 2.11(b) of the Disclosure Schedule:
(i) The Each of the Company and each of its subsidiaries have Company Subsidiary has (a) prepared and timely filed all required U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports ("RETURNS"“Returns”) relating to any and all Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material concerning or attributable to the Company. The , any Company Subsidiary or any of their respective operations and each of its subsidiaries such Returns have been completed in accordance with applicable Law in all material respects and (b) timely paid all Taxes shown it is required to be due on such Returnspay.
(ii) The Each of the Company and each of its subsidiaries as of the Effective Time will have Company Subsidiary has paid or withheld with respect to its employees their respective Employees, Stockholders, creditors and other third parties, all federal U.S. federal, state and state non-U.S. income taxestaxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution ActAct amounts, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, except and has timely paid over any such withheld Taxes which are not material to the Companyappropriate authorities.
(iii) Neither the Company nor any Company Subsidiary has been delinquent in the payment of its subsidiaries has any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed or assessed in writing against the Company or any of its subsidiariesCompany Subsidiary, nor has the Company or any of its subsidiaries Company Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of or proceeding with respect to any Return of the Company or any of its subsidiaries by any Tax authority Company Subsidiary is presently in progress, nor has and neither the Company or any of its subsidiaries Company Subsidiary has been notified in writing of or expects to receive any request for such an audit or other examination.
(v) examination or proceeding. No material adjustment relating to any Returns Return filed by the Company or any of its subsidiaries Company Subsidiary has been proposed in writing formally or informally by any Tax authority to the Company, any Company or any of its subsidiaries Subsidiary or any representative thereof. No written claim has ever been made by a taxing authority that the Company or any Company Subsidiary is or may be subject to taxation in a jurisdiction in which it does not file Returns.
(viv) Neither As of the date of the Current Balance Sheet, neither the Company nor any of its subsidiaries has Company Subsidiary had any liability Liabilities for any material unpaid Taxes which has had not been accrued for or reserved on the Company Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to and neither the Company, Company nor any Company Subsidiary has incurred any Liability for Taxes since the date of the Current Balance Sheet other than any liability in the ordinary course of business, consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel, copies of all Tax Returns for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in each Company Subsidiary filed for all periods with respect to which the ordinary coursestatute of limitations has not expired.
(vii) There is are (and immediately following the Effective Time there will be) no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company or any of its subsidiaries thatCompany Subsidiary relating to or attributable to Taxes, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would other than Liens for Taxes not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codeyet due and payable.
(viii) Neither the Company nor any Company Subsidiary has (a) ever been a member of its subsidiaries an affiliated group (within the meaning of Code §1504(a)) filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which was the Company), (b) ever been a party to any Tax sharing, indemnification, allocation or similar agreement or arrangement, nor does the Company or any Company Subsidiary owe any amount pursuant to such agreement or arrangement, (c) any liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law (including any arrangement for group or consortium relief or similar arrangement)), as a transferee or successor, by operation of law, by contract or agreement, or otherwise and (d) never been a party to any joint venture, partnership or other arrangement that, to the Company’s Knowledge, could be treated as a partnership for Tax purposes.
(ix) The Company has filed any consent agreement under not been a “United States Real Property Holding Corporation” within the meaning of Section 341(f897(c)(2) of the Code or agreed to have Section 341(f)(2) during any applicable period of the Code apply to any disposition of a subsection (f) asset (as defined determination specified in Section 341(f)(4897(c) of the Code) owned by the Company or any of its subsidiaries.
(ixx) Neither the Company nor any Company Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of its subsidiaries is party stock intended to or has any obligation under any qualify for tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of free treatment under Section 168(h) 355 of the Code.
(xi) Neither the Company nor any of its subsidiaries Company Subsidiary has constituted either a "distributing corporation" or a "controlled corporation" engaged in a distribution reportable transaction under Treas. Reg. § 1.6011-4(b), including a transaction that is the same as or substantially similar to one of stock qualifying the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xii) Neither the Company nor any Company Subsidiary will be required to include any income or gain or exclude any deduction or loss from Taxable income for tax-free treatment any taxable period or portion thereof after the Closing Date as a result of any (a) change in method of accounting for any taxable period or portion thereof ending on or prior to the Closing Date, (b) closing agreement under Section 355 7121 of the Code (x) in the two years executed prior to the date Closing, (c) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated prior to the Closing (or in the case of each of (a), (b) and (c), under any similar provision of applicable Law), (d) installment sale or open transaction disposition consummated prior to the Closing or (e) prepaid amount received prior to Closing, other than prepaid amounts included in Liabilities in the Closing Date Balance Sheet.
(xiii) Each of the Company and each Company Subsidiary uses the accrual method of accounting for Tax purposes.
(xiv) Neither the Company nor any Company Subsidiary is subject to Tax in a country other than the United States.
(xv) The Company and each Company Subsidiary is in compliance in all material respects with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (“Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xvi) The Company and each Company Subsidiary is in compliance in all material respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating their transfer pricing practices and methodology. The prices for any property or services (yor for the use of any property) in a distribution which could otherwise constitute part of a "plan" provided by or "series to the Company or related transactions" (within the meaning of Section 355(e) any Company Subsidiary are arm’s length prices for purposes of the Code) in conjunction with the Mergerapplicable transfer pricing laws.
Appears in 1 contract
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, assessed, or, to Company's knowledge, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or to Company's knowledge informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31June 30, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries (A) has ever been a member of an affiliated group filing a consolidated federal income Tax Return (other than a consolidated group the common parent of which is Company), (B) is a party to any Tax sharing or has Tax allocation agreement, arrangement or understanding, (C) is liable for the Taxes of any obligation other person under Treasury Regulation 1.1502-6 (or any tax-sharingsimilar provision of state, tax indemnity local or tax allocation agreement foreign law), as a transferee or arrangementsuccessor, by contract or otherwise, and (D) is a party to any joint venture, partnership or other arrangement that could be treated as a partnership for income Tax purposes.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (xi) in the two years prior to the date of this Agreement or (yii) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xi) None of Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 2.10(b) of the Disclosure Schedule:
(i) The Company and and, as applicable, each of its subsidiaries have (A) prepared and timely filed all federal, state, local income and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes required to be filed by other material Tax Returns of the Company and each any of its subsidiaries with any subsidiaries, and such Tax authority, except such Returns which are not true and correct in all material to the Company. The Company respects and each of its subsidiaries have (B) timely paid all material Taxes it is required to pay (whether or not shown to be due on such Returnsa Tax Return).
(ii) The Company and each of its subsidiaries and, as applicable, any subsidiary of the Effective Time will have Company, has paid or withheld with respect to its employees Employees, stockholders and other third parties, all federal Taxes and state income taxessocial security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution ActAct amounts, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, except and has timely paid over any such Taxes which are not material over to the Companyappropriate Governmental Entity.
(iii) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, assessed or proposed or assessed in writing against the Company or any of its subsidiaries, nor has and neither the Company or nor any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax that is currently in effect.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) . No material claim has ever been made by any Tax authority that the Company or any of its subsidiaries is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Returns Tax Return filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority. Neither the Company nor any of its subsidiaries is a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes currently under discussion between any Tax authority to and the Company or any of its subsidiaries or any representative thereofsubsidiaries.
(viv) Neither As of the Balance Sheet Date, neither the Company nor any of its subsidiaries has any liability material liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Current Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is and neither the Company nor any of its subsidiaries has incurred any material to the Company, liability for Taxes other than in the ordinary course of business (or recognized any liability extraordinary gain) since the Balance Sheet date.
(vi) The Company has made available to Parent or its legal counsel, copies of all income Tax Returns and other material Tax Returns for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in subsidiaries, for the ordinary coursepast three (3) taxable years.
(vii) There is are no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company or any of its subsidiaries thatrelating or attributable to Taxes, individually other than Liens for Taxes not yet due and payable or collectively, would reasonably be expected to give rise to for Taxes the payment validity of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of which are being contested in good faith through appropriate proceedings and for which adequate reserves have been established in the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeFinancials in accordance with GAAP.
(viii) Neither The Company has not been, during the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined applicable period provided in Section 341(f)(4897(c) of the Code, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) owned by of the Company or any of its subsidiariesCode.
(ix) Neither the Company nor any of its subsidiaries is party has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to or has any obligation qualify for tax free treatment under any tax-sharing, tax indemnity or tax allocation agreement or arrangementSection 355 of the Code.
(x) None Neither the Company nor any of its subsidiaries has engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the Company's types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or its subsidiaries' assets are tax exempt use property within the meaning other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 168(h) of the Code1.6011-4(b)(2).
(xi) Neither the Company nor any of its subsidiaries has constituted either (A) ever been a "distributing corporation" or a "controlled corporation" in a distribution member of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" an affiliated group (within the meaning of Section 355(e1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (B) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement (other than pursuant to the customary provisions of an agreement entered into in conjunction the ordinary course of business the primary purpose of which is not related to Taxes, such as leases, licenses or credit agreements), (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated prior to the MergerClosing (or in the case of each of (A), (B), and (C), under any similar provision of applicable Law), (D) had any liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract, or otherwise, or (E) has been a party to any joint venture, partnership or other agreement that would reasonably be expected to be treated as a partnership for Tax purposes.
(xii) Neither the Company nor any of its subsidiaries will be required to include any material income or gain or exclude any material deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of any (A) change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing, (B) closing agreement under Section 7121 of the Code executed prior to the Closing, (C) installment sale or open transaction disposition consummated prior to the Closing, or (D) prepaid amount received prior to the Closing.
(xiii) The Company and its subsidiaries use the accrual method of accounting for income Tax purposes.
(xiv) Neither the Company nor any of its subsidiaries is subject to Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment or other place of business in such other country.
(xv) The Company and its subsidiaries are in compliance in all material respects with all applicable transfer pricing laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of the Company and its subsidiaries. All intercompany arrangements have been adequately documented, and such documents have been duly executed, in a timely manner. The prices for any property or services (or for the use of any property) provided by or to the Company and its subsidiaries are arm’s length prices for purposes of all applicable transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have (A) prepared and timely filed all federal, U.S. federal and material state, local and foreign non‑U.S. returns, estimates, information statements statements, forms and reports ("RETURNS") relating to Taxes required to be filed under applicable law in connection with the determination, assessment, or collection of any Tax (“Returns”) required to be paid by the Company and each or any of its subsidiaries with any Tax authority, except or their respective operations and such Returns which are not true and correct in all material respects and have been completed in accordance with applicable law and accurately set forth all material items to the Company. The Company and each of its subsidiaries have paid all Taxes shown extent required to be due reflected or included on such Returns, and (B) timely paid all material Taxes it is required to pay (whether or not shown on a Return) or, for all Taxes that are not yet due and payable (whether or not shown on any Return) that have accrued up to and including the Closing Date, has appropriately included such Taxes in the Estimated Closing Balance Sheet.
(ii) The Company and each of its subsidiaries as of the Effective Time will have paid or withheld with respect to its employees all federal and state income taxestheir respective Employees, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act stockholders and other third parties, all Taxes required to be paid or withheld, except and have timely paid over any such Taxes which are not material over to the Companyappropriate authorities.
(iii) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, assessed or proposed or assessed in writing against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax, which waiver is still in effect.
(iv) None of the Company or any of its subsidiaries or any of the Company Knowledge Parties expects any authority to assess any material additional Taxes for any period for which Tax Returns have been filed. No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by , and none of the Company or any of its subsidiaries has Knowledge that any such action or proceeding is being contemplated. No adjustment relating to any Return filed by the Company has been proposed in writing formally or informally by any Tax authority authority.
(v) The Company has delivered or made available to Parent, copies of all income and other material Returns for the Company and its subsidiaries filed for all periods since December 31, 2010.
(vi) No claim has ever been made by a Governmental Entity in a jurisdiction where the Company or any of its subsidiaries does not file Returns that it is or any representative thereofmay be subject to taxation by that jurisdiction.
(vivii) With the exception of customary commercial leases or contracts that are not primarily related to Taxes entered into in the ordinary course of business and liabilities thereunder, neither the Company nor any of its subsidiaries has (A) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its subsidiaries owe any amount under any such agreement, (B) had any Liability for the Taxes of any Person (other than Company or any subsidiary) under Treasury Regulation §1.1502‑6 (or any similar provision of state, local or non‑U.S. law), as a transferee or successor, by Contract, or by operation of law or (C) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(viii) The Company has not been, during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) There are no Liens on the assets of the Company or any of its subsidiaries relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(x) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet engaged in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 a “reportable transaction,” as set forth in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f6707A(c)(1) of the Code and Treasury Regulation §1.6011‑4(b) or agreed any similar provision of state, local or non‑U.S. law, or any transaction that is the same as or substantially similar to have one of the types of transactions that the IRS has determined to be a tax avoidance transaction and identified by notice, regulation or other form of published guidance as a listed transaction as set forth in Section 341(f)(26707A(c)(1) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Codeand Treasury Regulation §1.6011‑4(b)(2).
(xi) Neither the Company nor any of its subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free tax‑free treatment under Section 355 of the Code (x) in the two (2) years prior to the date of this Agreement Agreement.
(xii) 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 Closing Date as a result of (A) any installment sale or open transaction disposition made on or prior to the Closing Date, (B) any prepaid amount received on or prior to the Closing Date, (C) any “closing agreement,” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign income Tax law), (D) a change in the method of accounting for a period ending prior to or including the Closing Date, (E) any intercompany transaction or excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local, or non‑U.S. income Tax law), (F) an election under Section 108(i) of the Code or (yG) in the use of an improper method of accounting for a distribution taxable period ending on or prior to the Closing Date.
(xiii) Neither the Company nor any of its affiliates has taken or agreed to take any action which could otherwise constitute part of prevent the Merger from qualifying as a "plan" or "series or related transactions" (within the meaning of reorganization under Section 355(e368(a) of the Code.
(xiv) Notwithstanding anything to the contrary in conjunction this Agreement, it is agreed and understood that (i) no representation or warranty is made by the Company in this Agreement in respect of Tax matters, other than the representations and warranties set forth in Section 3.11, (ii) the representations and warranties of the Company in this Section 3.11(a) (other than Section 3.11(a)(vii) or Section 3.11(a)(xii)) refer only to activities prior to the Closing and shall not serve as representations and warranties regarding, or a guarantee of, nor can they be relied upon with respect to, Taxes attributable to any taxable period (or portion thereof) beginning, or Tax positions taken, after the MergerClosing Date, and (iii) no representations, warranties or guarantees are made with respect to the amount or availability of Tax attributes of the Company or any subsidiary after the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Millennial Media Inc.)
Tax Returns and Audits. (i) The As of the Effective Time the Company will have prepared and each of its subsidiaries have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to ------- any and all Taxes required concerning or attributable to be filed by the Company or its operations and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company true and each of its subsidiaries correct and have paid all Taxes shown to be due on such Returnsbeen completed in accordance with applicable law.
(ii) The Company and each of its subsidiaries as As of the Effective Time the Company (A) will have paid all Taxes it is required to pay and will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be ---- ---- withheld, except such and (B) will have accrued on the Current Balance Sheet all Taxes which are not material attributable to the Companyperiods covered by the Current Balance Sheet and will not have incurred any liability for Taxes for the period prior to the Effective Time other than in the ordinary course of business.
(iii) Neither The Company has not been delinquent in the Company payment of any Tax nor is there any of its subsidiaries has any material Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesCompany, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the The Company nor any of its subsidiaries has any liability no liabilities for any material unpaid federal, state, local and foreign Taxes which has have not been accrued for or reserved on the Company Balance Sheet against in accordance with GAAPGAAP on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, other than Company has not incurred any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation date of the business of the Company and its subsidiaries Current Balance Sheet other than in the ordinary coursecourse of business.
(vii) The Company has made available to Parent or its legal counsel, copies of all foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since its inception.
(viii) There is are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of the Company relating to or attributable ----- to Taxes other than Liens for Taxes not yet due and payable.
(ix) Neither the Company nor the Shareholders have Knowledge of any basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of the Company.
(x) None of the Company's assets are treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(xi) As of the Effective Time, there will not be any contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which by the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codean expense under applicable law.
(viiixii) Neither the The Company nor any of its subsidiaries has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2341(f)(4) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ixxiii) Neither The Company is not a party to any tax sharing, indemnification or allocation agreement nor does the Company nor owe any of its subsidiaries is party to or has any obligation amount under any tax-sharing, tax indemnity or tax allocation agreement or arrangementsuch agreement.
(xxiv) None The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's or its subsidiaries' assets are tax exempt use property Tax books and records.
(xv) The Company is not, and has not been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Gateway International Holdings Inc)
Tax Returns and Audits. Except as set forth in Section 2.11(a) of the Disclosure Schedule:
(i) The Each of the Company and each of its subsidiaries have Predecessor Company has (A) prepared and timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes material Tax Returns required to be filed by the Company it, such Tax Returns have been completed in accordance with applicable Law and each of its subsidiaries with any such Tax authorityReturns are true, except such Returns which are not correct, accurate and complete in all material to the Company. The Company respects and each of its subsidiaries have (B) timely paid all Taxes shown required to be due paid, whether or not shown on such Tax Returns.
(ii) The Each of the Company and each of its subsidiaries as of the Effective Time will have Predecessor Company has paid or withheld with respect to its employees employees, stockholders, creditors and other third parties, all federal U.S. federal, state and state non-U.S. income taxestaxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution ActAct amounts, Taxes pursuant to the Federal Unemployment Tax Act amounts and other material Taxes required to be paid or withheld, except and has timely paid over any such withheld Taxes which are not material to the Companyappropriate authorities.
(iii) Neither the Company or the Predecessor Company has been delinquent in the payment of any Tax, nor is there any of its subsidiaries has any material Tax deficiency outstanding, assessed or proposed in writing or assessed orally against the Company or any of its subsidiariesit, nor has the Company or any of its subsidiaries the Predecessor Company executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority the Predecessor Company is presently in progress, nor has the Company or any of its subsidiaries Predecessor Company been notified in writing or, to the Knowledge of the Company, orally of any request for such an audit or other examination. No adjustment relating to any Tax Return filed by the Company or the Predecessor Company has been proposed in writing or, to the Knowledge of the Company, orally by any Taxing authority to the Company or the Predecessor Company or any representative thereof. No written or, to the Knowledge of the Company, oral claim has ever been made by a Taxing authority that the Company or the Predecessor Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns.
(v) No material adjustment relating to any Returns filed by As of the Balance Sheet Date, the Company or does not have any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability Liabilities for any material unpaid Taxes which has have not been accrued for or reserved on the Company Current Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to and the Company, Company has not incurred any Liability for Taxes since the Balance Sheet Date other than any liability in the ordinary course of business, consistent with past practices.
(vi) The Company has provided to Parent or its legal counsel, copies of all income and other material Tax Returns for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursePredecessor Company filed for all periods ending on or after 2004.
(vii) There is are no contract, agreement, plan or arrangement to which Liens on the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee assets of the Company relating to or any of its subsidiaries thatattributable to Taxes, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would other than Liens for Taxes not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codeyet due and payable.
(viii) Neither the Company nor any the Predecessor Company (A) has been a member of its subsidiaries an affiliated group (within the meaning of Code §1504(a)) filing a consolidated U.S. federal income Tax Return, (B) has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply been a party to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by Tax sharing, indemnification, allocation or similar agreement or arrangement, nor does the Company owe any amount pursuant to any such agreement or arrangement, or (C) has any liability for the Taxes of any Person under Treasury Regulations § 1.1502-6 (or any similar provision of its subsidiariesstate, local or non-U.S. law (including any arrangement for group or consortium relief or similar arrangement)), as a transferee or successor, by operation of law, by contract or agreement, or otherwise.
(ix) Neither the Company nor any of its subsidiaries is party to or the Predecessor Company has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property been a “United States Real Property Holding Corporation” within the meaning of Section 168(h897(c)(2) of the Code during any applicable period of determination specified in Section 897(c) of the Code.
(xix) Neither the Company nor any of its subsidiaries the Predecessor Company has constituted either a "distributing corporation" or a "controlled corporation" engaged in a distribution “reportable transaction” under Treasury Regulations § 1.6011-4(b), including a transaction that is the same or substantially similar to one of stock qualifying the types of transactions that the IRS has determined to be a tax avoidance transaction and identified by notice, regulation or other form of published guidance as set forth under Treasury Regulations § 1.6011-4(b)(2).
(xi) Each of the Company and the Predecessor Company has disclosed on its Tax Returns all positions taken therein that could give rise to a substantial understatement penalty under Code Section 6662 or any similar provision of other Law, and is in possession of supporting documentation as may be required under any such provision.
(xii) The Company has not filed, and does not have pending, any ruling requests with any Taxing authority, including any request to change any accounting method.
(xiii) The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for tax-free treatment under any period ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date or any adjustment pursuant to Section 355 481(a) of the Code (xor any analogous provision of other Law), (B) closing agreement as described in Section 7121 of the two years Code (or any corresponding or similar provision of other Law) executed on or prior to the date of this Agreement Closing Date, (C) installment sale or open transaction disposition made on or prior to the Closing Date, or (yD) prepaid amount received on or prior to the Closing Date.
(xiv) All material information in the Company’s possession regarding the income Tax basis that the Company has in its assets, its current and accumulated earnings and profits, its Tax carryovers (including net operating loss carryovers), owner shifts, equity structure shifts and ownership changes as described in Section 382 of the Code, and currently applicable Tax elections have otherwise been made available to the Merger Sub and to the Parent.
(xv) The Company is not a distribution which could otherwise constitute part party to any interest rate swap, currency swap, notional principal contract, or similar transaction.
(xvi) The Company has not taken or agreed to take any action, and is not aware of any fact or circumstances, that would prevent the Merger from qualifying as a "plan" or "series or related transactions" 368 Reorganization.
(within xvii) The merger of the meaning Predecessor Company into the Company effective as of March 24, 2011, qualified as a tax-free reorganization pursuant to Section 355(e368(a)(1)(A) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. (i) The Company and each of its subsidiaries have Subsidiaries has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to any and all Taxes required concerning or attributable to be filed by the Company or its Subsidiaries (“Returns”), and such Returns are true, correct and complete in all material respects.
(ii) Except as properly reserved on the Current Balance Sheet, the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material Subsidiaries has paid or caused to the Company. The Company and each of its subsidiaries have be paid all Taxes shown it is required to be pay for which payment was due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have has withheld with respect to its employees all federal Company Personnel and state income taxes, Taxes pursuant other persons (and timely paid over to the appropriate Tax authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has any material There is no Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No None of the Company, or any of its Subsidiaries or any other person on behalf of the Company or any of its Subsidiaries have granted to any person any power of attorney that is currently in force with respect to any Tax matter.
(v) Neither the Company nor the Company Subsidiary has applied for or claimed, or is subject to any terms and conditions of, any Tax exemption, Tax holiday or other Tax reduction agreement or order.
(vi) The Company and its Subsidiaries have disclosed on their federal income Returns all positions that would (if not disclosed) give rise to a substantial understatement penalty under Section 6662 of the Code.
(vii) Except as set forth on Section 2.10(a)(vii) of the Schedule of Exceptions, to the Knowledge of the Company, there is no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries Subsidiaries been notified of in writing by any request for Tax authority that any such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which examination is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Codepending.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) Subsidiaries had, as of the Code or agreed to have Section 341(f)(2) date of the Code apply to Current Balance Sheet, any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of Liabilities for unpaid federal, state, local or foreign Taxes which have not been accrued or reserved on the Code) owned by Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company or nor any of its subsidiariesSubsidiaries has incurred any Liability for Taxes since the date of the Current Balance Sheet other than in the ordinary course of business.
(ix) Neither the Company nor any of its subsidiaries Subsidiaries is or has been a "reporting corporation" subject to the information reporting and record maintenance requirements of Section 6038A of the Code and the Treasury Regulations promulgated thereunder. Neither the Company nor its Subsidiaries is a party to or has any obligation under any taxcost-sharing, tax indemnity or tax allocation sharing agreement or similar arrangement which is not a "qualified cost sharing arrangement" within the meaning of Treasury Regulations Section 1.482-7.
(x) None The Company has made available to CS in the Data Room copies of all foreign, federal, state and local income and all state and local sales and use Returns for the Company's or Company and each of its subsidiaries' assets are tax exempt use property within Subsidiaries filed for all periods beginning on the meaning date of Section 168(h) of the Codetheir inception.
(xi) There are no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, “Liens”) on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable or being contested in good faith.
(xii) Neither the Company nor any of its subsidiaries Subsidiaries has constituted either (A) ever been a "distributing corporation" or a "controlled corporation" in a distribution member of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" an affiliated group (within the meaning of Section 355(e1504(a) of the Code) filing a consolidated federal income Return (other than a group the common parent of which was the Company), (B) ever been a party to any Tax sharing, indemnification or allocation agreement (other than between or among the Company and its Subsidiaries), or (C) any Liability for the Taxes of any person (other than Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract or agreement, or otherwise, or is a party to any joint venture, partnership or other arrangement that is treated as a partnership for federal income Tax purposes.
(xiii) The Company has not been, at any time within the last five years, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xiv) No adjustment to Taxes relating to any Return filed by the Company or any of its Subsidiaries has been proposed in conjunction with writing by any Tax authority to the MergerCompany or any of its Subsidiaries.
(xv) There are no Tax rulings, requests for rulings, or “closing agreements” (as described in Section 7121 of the Code or any corresponding provision of state, local or foreign Tax Law) relating to the Company or any of its Subsidiaries which would affect the Company’s or any Company Subsidiary’s Liability for Taxes for any period ending after the Closing Date. Neither the Company nor any Subsidiary will be required to include for any period ending after the Closing Date taxable income attributable to (A) any prepaid amount received prior to the Closing, (B) an election under Section 108(i) of the Code, (C) any distributions received prior to the Closing Date from an entity that is fiscally transparent for Tax purposes, or (D) any installment sale or open transaction disposition made on or prior to the Closing Date. Neither the Company nor any Subsidiary has changed any method of accounting that will require it to make any adjustment under Section 481 of the Code (or any corresponding provision of state, local or foreign Tax Law) for any period ending after the Closing Date.
(xvi) Neither the Company nor any of its Subsidiaries has participated in an international boycott within the meaning of Section 999 of the Code.
(xvii) The Company is not and has never been an “S Corporation” within the meaning of Section 1361 of the Code.
Appears in 1 contract
Tax Returns and Audits. (ia) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") and/or extensions relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(iib) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxesTaxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iiic) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivd) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination.
(ve) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vif) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December March 31, 1999 2000 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
. 17 (viig) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Webvan Group Inc)
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed in writing (or otherwise, to the Company's knowledge, proposed) or assessed against the Company or any of its subsidiaries, nor has the Company or any of 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) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified in writing (or otherwise, to the Company's knowledge, notified) of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the date of the Company Balance Sheet in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this AgreementAgreement (excluding the effect, if any, of the provisions of Section 5.12 hereof), including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesCompany.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) Except as may be required as a result of the Merger, the Company and its subsidiaries have not been and will not be required to include any adjustment in Taxable income for any Tax period (or portion thereof) pursuant to Section 481 or Section 263A of the Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixii) Neither Part 2.7 of the Company nor Schedules lists (A) any foreign Tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by the Company or any of its subsidiaries with any Tax authority and (C) any expatriate programs or policies affecting the Company or any of its subsidiaries.
(xiii) The Company is not, and has constituted either not been at any time, a "distributing United States real property holding corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e897(c)(2) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 3.7 of the Summit Schedules:
(i) The Company Summit and each of its subsidiaries have timely prepared and filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") Returns relating to any and all Taxes required concerning or attributable to be filed by the Company Summit and each of its subsidiaries with any Tax authority, except or their operations and such Returns which are not true and correct in all material to the Company. The Company respects and have been completed in accordance with applicable law.
(ii) Summit and each of its subsidiaries (A) have paid or accrued all Taxes shown it is required to be due on such Returns.
pay or accrue and (iiB) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company Summit nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company Summit or any of its subsidiaries, nor has the Company Summit or any of 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) No audit or other examination of any Return of the Company Summit or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Summit or any of its subsidiaries been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Summit nor any of its subsidiaries has any material liability for any material unpaid federal, state, local or foreign Taxes which has not been accrued for or reserved on the Company Balance Sheet against in accordance with GAAPGAAP on the Summit Balance Sheet or accrued in accordance with GAAP in the ordinary course of business since the date of the Summit Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material and neither Summit nor any of its subsidiaries has knowledge of any basis for the assertion of any such liability attributable to the Companyassets or operations of Summit or any of its subsidiaries.
(vi) Summit has provided to OrCAD copies of all federal and state income and all state sales and use Tax Returns for all periods since the date of Summit's incorporation, other than any liability for unpaid Taxes that may except those as to which applicable statues of limitations have accrued since December 31, 1999 in connection with the operation expired and no tolling of the business statute of the Company and its subsidiaries in the ordinary courselimitations has been executed.
(vii) There are no Liens on the assets of Summit or any of its subsidiaries relating to or attributable to Taxes.
(viii) Neither Summit nor any of its subsidiaries has knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of Summit or any of its subsidiaries.
(ix) None of Summit's or any of its subsidiaries' assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Summit or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections Section 280G, 404 G or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 162 of the Code.
(viiixi) Neither the Company Summit nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company Summit or any of its subsidiaries.
(ixxii) Neither the Company Summit nor any of its subsidiaries is a party to a tax sharing or has allocation agreement nor does Summit nor any obligation of its subsidiaries owe any amount under any tax-sharing, tax indemnity or tax allocation agreement or arrangementsuch agreement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xixiii) Neither the Company Summit nor any of its subsidiaries has constituted either been at any time, a "distributing United States real property holding corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e897(c)(2) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. (ia) The Company MetaTools and each of its subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") Returns relating to Taxes required to be filed by the Company MetaTools and each of its subsidiaries with any Tax authoritysubsidiaries, except such Returns which are not material to the Company. The Company MetaTools, and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(iib) The Company Except as is not material to MetaTools, MetaTools and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are .
(c) Except as is not material to the Company.
(iii) Neither the Company MetaTools, neither MetaTools nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company MetaTools or any of its subsidiaries, nor has the Company MetaTools or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivd) No Except as is not material to MetaTools, no audit or other examination of any Return of the Company MetaTools or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company MetaTools or any of its subsidiaries been notified of any request for such an audit or other examination.
(ve) No Except as is not material to MetaTools, no adjustment relating to any Returns filed by the Company MetaTools or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company MetaTools or any of its subsidiaries or any representative thereof.
(vif) Neither the Company Except as is not material to MetaTools, neither MetaTools nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company MetaTools Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary courseMetaTools.
(viig) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company MetaTools or any of its subsidiaries that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiih) Neither the Company MetaTools nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiariesMetaTools.
(ixi) Neither the Company MetaTools nor any of its subsidiaries is party to or has any obligation obligations under any tax-sharing, tax indemnity sharing or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fractal Design Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company and each of its subsidiaries Subsidiaries have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes Tax Returns required to be filed by the Company and each of or its subsidiaries Subsidiaries with any Tax authorityauthority prior to the date hereof, except such Tax Returns which that are not material to the CompanyCompany and its Subsidiaries. The Company and each of its subsidiaries Subsidiaries have paid or accrued on the balance sheet all such Taxes shown to be due payable on such Tax Returns.
(ii) The All material Taxes that the Company and each of its subsidiaries as of the Effective Time will Subsidiaries are required by law to withhold or collect have been duly withheld with respect to its employees all federal or collected, and state income taxes, Taxes pursuant have been timely paid over to the Federal Insurance Contribution Act, Taxes pursuant proper governmental authorities to the Federal Unemployment Tax Act extent due and other Taxes required to be withheld, except such Taxes which are not material to the Companypayable.
(iii) Neither the Company nor any of its subsidiaries has any There is no material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has have the Company or any of its subsidiaries Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the knowledge of the Company, no audit or other examination of any Tax Return of the Company or any of and its subsidiaries Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries Subsidiary been notified in writing of any request for such an audit or other examination, and to the knowledge of the Company, no change in the Company’s tax reporting is currently anticipated or expected.
(v) No material adjustment relating to any Tax Returns filed by the Company or any of its subsidiaries Subsidiary has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Subsidiary or any representative thereof.
(vi) Neither the The Company nor any of and its subsidiaries has any Subsidiaries have no material liability for any material unpaid Taxes which has have not been accrued for or reserved on the Company Balance Sheet Company’s balance sheets included in accordance with GAAPthe Audited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the end of the most recent fiscal year in connection with the operation of the business of the Company and its subsidiaries in the ordinary coursecourse of business.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Harmony Merger Corp.)
Tax Returns and Audits. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect:
(i) The Company and each of its subsidiaries Subsidiaries have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports and any amendments thereto ("RETURNS"“Tax Returns”) relating to any and all Taxes required concerning or attributable to be filed by the Company, its Subsidiaries or their respective operations and such Tax Returns are true and correct and have been completed in accordance with applicable Law.
(ii) Company and each of its subsidiaries Subsidiaries have complied with any Tax authority, except such Returns which are not material all applicable Laws relating to the Company. The Company payment and each withholding of its subsidiaries Taxes and have timely withheld and paid to the appropriate foreign or domestic Governmental Entity exercising any taxing or Tax regulatory authority (a “Taxing Authority”) all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and any other Taxes amounts required to be withheldpaid or withheld in connection with amounts paid or owed to any employee, except such Taxes which are not material to the Companyindependent contractor, creditor or other third party.
(iii) Neither the Company nor any of its subsidiaries has Subsidiaries is delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed or assessed against the Company or any of its subsidiariesSubsidiaries, nor has the does Company or any of its subsidiaries executed Subsidiaries have in effect any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries by any Tax authority Subsidiaries is presently in progress, nor has the Company or any of its subsidiaries been notified Subsidiaries received written notification of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by There are no Liens on the assets of Company or any of its subsidiaries has been proposed in writing formally Subsidiaries relating to or informally by any Tax authority attributable to Taxes, other than Liens for Taxes not yet due and payable.
(vi) None of the assets of Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which Subsidiaries is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party treated as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any “tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property property,” within the meaning of Section 168(h) of the Code.
(xivii) Neither the Company nor any of its subsidiaries Subsidiaries is, nor has been at any time during the 5-year period ending with the Effective Time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(viii) Neither Company nor any of its Subsidiaries (1) is, or since January 1, 2002 has been, a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (2) is a party to any Tax sharing, indemnification or allocation agreement, nor does Company or any of its Subsidiaries owe any amount under any such agreement, or (3) has any liability for the Taxes of any Person (other than Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract, or otherwise.
(ix) Neither Company nor any of its Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "“plan" ” or "“series or of related transactions" ” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(x) Neither Company nor any of its Subsidiaries has participated in a transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Section 6707A(c)(2) of the Code.
(xi) Company and each of its Subsidiaries are in compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order of a territorial or non-U.S. government.
(xii) No claim has been made in writing by any Taxing Authority in a jurisdiction where none of the Company or any of its Subsidiaries files Tax Returns to the effect that any of Company or its Subsidiaries is or may be subject to taxation by, or any of Company or its Subsidiaries is required to file any Tax Return in, that jurisdiction.
(xiii) Neither Company nor any of its Subsidiaries (a) has agreed to or is required to make any adjustment under Section 481 of the Code that will require an adjustment to taxable income for any period following the Effective Time, (b) has received written notification that the Internal Revenue Service is proposing any such adjustment, or (c) has an application pending with the Internal Revenue Service requesting permission for any changes in methods of accounting.
(xiv) To the knowledge of Company, (a) neither Company nor any of its Subsidiaries has participated in or cooperated with an international boycott within the meaning of Section 999 of the Code and (b) Company is not and, within the past three years, has not been a passive foreign investment company within the meaning of Section 1297 of the Code.
(xv) Company has not within the past three years received written notification from any U.S. federal or state Taxing Authority making or proposing any adjustment of Tax items of the Company or any of its Subsidiaries pursuant to Section 482 of the Code.
(xvi) Neither Company nor any of its Subsidiaries has entered into a gain recognition agreement described in Treas. Reg. § 1.367(a)-8 that would be outstanding after the Effective Time.
(xvii) Neither Company nor any of its Subsidiaries is party to or bound by any closing agreement with any U.S. federal or state Taxing Authority that has been entered into within the past three years.
Appears in 1 contract
Tax Returns and Audits. (i) The Company and each of its subsidiaries have timely filed all federal, state, local and foreign returns, forms, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority. Such Returns are true, except such Returns which are not correct and complete in all material to the Companyrespects. The Company and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees and paid all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheldwithheld and paid in connection with amounts paid and owing to any employee, except such Taxes which are not material to the Companyindependent contractor, creditor, stockholder or other third party (whether domestic or foreign).
(iii) Neither the Company nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiaries, nor has the Company or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending extension of any the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries been notified of any request for such an audit or other examination. The Company has delivered or made available to Parent true and complete copies of income Returns of the Company and its subsidiaries for the years ended June 30, 2001, 2002, 2003 and 2004, and true and complete copies of all examination reports and statements of deficiencies assessed against or agreed to by any of the Company and its subsidiaries or any predecessor, with respect to income Taxes. No written claim has ever been made by a Tax authority in a jurisdiction where the Company or any of its subsidiaries do not file Returns that any of the Company or its subsidiaries is or may be subject to a Tax liability in that jurisdiction.
(v) No material adjustment relating to any Returns filed or required to be filed by the Company or any of its subsidiaries has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its subsidiaries has any material liability for any material unpaid Taxes (whether or not shown to be due on any Return) which has not been accrued for or reserved on the Company Company's Interim Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 the Interim Balance Sheet Date in connection with the operation of the business of the Company and its subsidiaries in the ordinary course. There are no Liens with respect to Taxes on any of the assets of the Company or any of its subsidiaries, other than customary Liens for Taxes not yet due and payable.
(vii) There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the CodeIRC. There is no contract, agreementContract, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the CodeIRC.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement. Neither the Company nor any of its subsidiaries has ever been a member of a group filing a consolidated, unitary, combined or similar Return (other than Returns which include only the Company and any of its subsidiaries) under any federal, state, local or foreign law. Neither the Company nor any of its subsidiaries has any liability for Taxes of any Person other than the Company and its subsidiaries (i) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (ii) as a transferee or successor, (iii) by contract, or (iv) otherwise. Neither the Company nor any of its subsidiaries is party to any joint venture, partnership or other arrangement that could be treated as a partnership for federal and applicable state, local or foreign Tax purposes.
(xix) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the CodeIRC. Neither the Company nor any of its subsidiaries has agreed, or is or was required, to make any adjustment under Section 481(a) of the IRC by reason of a change in accounting method or otherwise (or by reason of any similar provision of state, local or foreign law).
(xix) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code IRC (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the CodeIRC) in conjunction with the MergerTransactions.
(xi) Neither the Company nor any of its subsidiaries has been a party to a "reportable transaction," as such term is defined in Treasury Regulations Section 1.6011-4(b)(1) or to a transaction that is or is substantially similar to a "listed transaction," as such term is defined in Treasury Regulations Section 1.6011-4(b)(2), or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax Legal Requirement. The Company and its subsidiaries have 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 IRC.
(xii) Section 2.14(b) of the Company Schedule contains the names of each Company Employee who has made, to the Knowledge of the Company, an election under Section 83(b) of the IRC with respect to the purchase of Company stock subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in ---------------------- Schedule 2.14 hereto: -------------
(i) The the Company and each of its subsidiaries Subsidiary have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNS") relating to Taxes ("Returns") ------- required to be filed by the Company and each of its subsidiaries or a Subsidiary with any Tax authorityauthority prior to the date hereof, except such Returns which are not material to the CompanyCompany or a Subsidiary. All such Returns are true, correct and complete in all material respects. The Company and each of its subsidiaries Subsidiary have paid all Taxes shown to be due on such Returns.
(ii) The All Taxes that the Company or a Subsidiary is required by law to withhold or collect have been duly withheld or collected, and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant been paid over to the Federal Insurance Contribution Act, Taxes pursuant to the Federal Unemployment Tax Act and other Taxes required to be withheld, except such Taxes which are not material to the Companyproper governmental authorities.
(iii) Neither The Company and each Subsidiary have not been delinquent in the Company payment of any material Tax nor any of its subsidiaries has is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesSubsidiary, nor has the Company or any of its subsidiaries Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries Subsidiary by any Tax authority is presently in progress, nor has the Company or any of its subsidiaries Subsidiary been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries Subsidiary has been proposed in writing writing, formally or informally informally, by any Tax authority to the Company or any of its subsidiaries Subsidiary or any representative thereof.
(vi) Neither the The Company nor any of and its subsidiaries has any Subsidiaries have no liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Balance Sheet in accordance with GAAPits current fiscal year, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid not such Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company are currently due and its subsidiaries in the ordinary coursepayable.
(vii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xi) Neither the Company nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. (i) The the Company and each of its subsidiaries the Subsidiary have timely filed all federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company and each of its subsidiaries with any Tax authority, except such Returns which are not material to the Company. The Company Subsidiary and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries the Subsidiary as of the Effective Time will have withheld with respect to its employees all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution ActFICA, Taxes pursuant to the Federal Unemployment Tax Act FUTA and other Taxes required to be withheld, except such Taxes which are not material to the Company.
(iii) Neither the Company nor Subsidiary has been delinquent in the payment of any of its subsidiaries has Tax nor is there any material Tax deficiency outstanding, proposed or assessed against the Company or any of its subsidiariesthe Subsidiary, nor has the Company or any of its subsidiaries the Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No Except as provided on Schedules 2.19 attached hereto, no audit or other examination of any Return of the Company or any of its subsidiaries by any Tax authority the Subsidiary is presently in progress, nor has the Company or any of its subsidiaries the Subsidiary been notified of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries the Subsidiary has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries the Subsidiary or any representative thereofthereof and, to the knowledge of Company, no basis exists for any such adjustment which would be material to the Company.
(vi) Neither the Company nor any of its subsidiaries the Subsidiary has any liability for any material unpaid Taxes which has not been accrued for or reserved on the Company Interim Balance Sheet in accordance with GAAPSheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries in the ordinary course.
(vii) None of the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(viii) There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party as of the date of this Agreementarrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any of its subsidiaries the Subsidiary that, individually or collectively, would reasonably be expected to could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 162 of the Code.
(viiiix) Neither the Company nor any of its subsidiaries the Subsidiary has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangementCompany.
(x) None of the Company's or its subsidiaries' assets are tax exempt use Company is not, and has not been at any time, a "United States real property holding corporation" within the meaning of Section 168(h897(c)(2) of the Code.
(xi) Neither No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes payable by the Company or the Subsidiary.
(xii) As of the Closing Date, neither the Company nor the Subsidiary will be affected by or have any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for obligations under any tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement sharing or (y) in a distribution which could otherwise constitute part of a "plan" allocation agreement or "series or related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Mergerarrangement.
Appears in 1 contract
Tax Returns and Audits. (i) The Company Oplink and each of its subsidiaries have timely filed all material federal, state, local and foreign returns, estimates, information statements and reports ("RETURNSReturns") relating to Taxes required to be filed by the Company Oplink and each of its subsidiaries with any Tax authority, except such . Such Returns which are not true and correct in all material to the Companyrespects and have been completed in accordance with applicable law. The Company Oplink and each of its subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company Oplink and each of its subsidiaries as of the Effective Time will have withheld with respect to its employees (and timely paid over to the appropriate Taxing authority) all federal and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act, Taxes pursuant to Act ("FICA") and the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, except such Taxes which that are not material to the CompanyOplink.
(iii) Neither the Company Oplink nor any of its subsidiaries has been delinquent in the payment of any material Tax nor is there any material Tax deficiency or adjustment outstanding, proposed or assessed against the Company Oplink or any of its subsidiaries, nor has the Company Oplink or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any material Return of the Company Oplink or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Oplink or any of its subsidiaries been notified in writing of any request for such an audit or other examination.
(v) No material adjustment relating to any Returns filed by the Company or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority to the Company or any of its subsidiaries or any representative thereof.
(vi) Neither the Company Oplink nor any of its subsidiaries has had, as of December 31, 2001, any liability for any material unpaid Taxes which that has not been accrued for or reserved against on the Company Oplink Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise. Since December 31, which is material to the Company2001, other than neither Oplink nor any of its subsidiaries has incurred any liability for unpaid any material Taxes that may have accrued since December 31, 1999 in connection with the operation of the business of the Company and its subsidiaries other than in the ordinary coursecourse of business.
(viivi) There is no contract, agreement, plan or arrangement to which the Company Oplink or any of its subsidiaries is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company Oplink or any of its subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount in excess of $250,000 that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Company or any of its subsidiaries Oplink is a party or by which it or any of its subsidiaries is bound as of the date of this Agreement to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viiivii) Neither the Company Oplink nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company Oplink or any of its subsidiaries.
(ixviii) Neither the Company Oplink nor any of its subsidiaries (a) is party to or has any obligation under any tax-Tax sharing, tax indemnity or tax allocation agreement or arrangement.
, (xb) None has ever been a member of the Company's or its subsidiaries' assets are tax exempt use property an affiliated group (within the meaning of Section 168(hCode [sec]1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Oplink), or (c) has any liability for the CodeTaxes of any person (other than Oplink or any of its subsidiaries) under Treas. Reg. ss. 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise.
(xiix) Neither the Company Oplink nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying intended to qualify for tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "series or of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Oplink Communications Inc)
