Tax Returns and Audits. (i) The Company has prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid by the Company (whether or not shown on any Tax Return) have been paid. (ii) The Company has paid all Taxes required to be paid and has withheld or paid with respect to its Employees and 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, Federal Unemployment Tax Act and other Taxes required to be withheld or paid. (iii) No Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of the period for the assessment or collection of any Tax with continuing effect. (iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof. (v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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, 2002. (vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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. (x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code. (xi) The Company has not 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). (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Biomira CORP), Agreement and Plan of Reorganization (Biomira Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.8(b) of the Stockholder Disclosure Letter:
(i) The Company Each of the Company, WW and each Subsidiary 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 concerning or attributable to the Company it or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company Each of the Company, WW and each Subsidiary (A) has paid or accrued all Taxes it is required to be paid pay or accrue and (B) has reported and withheld or paid with respect to its Employees employees of the Company, WW and other third parties (each Subsidiary all federal and paid over any withheld amounts to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Income Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA"), and other Taxes required to be withheld or paidreported and withheld.
(iii) No Tax deficiency is outstanding, assessed or, to the Knowledge of Neither the Company, WW nor any Subsidiary has been delinquent in the payment of any Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company, WW or any Subsidiary, nor has the Company Company, WW or any Subsidiary executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, WW or any Subsidiary is presently currently in progress, nor has the Company Company, WW or any Subsidiary been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material Neither the Company, WW nor any Subsidiary has any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company Stockholder has not incurred no Knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date Company, WW or any Subsidiary, or any of the Closing Balance Sheet other than in the Ordinary Course of Businesstheir respective assets or operations.
(vi) The Company Stockholder has made available provided to Parent or its legal counsel copies of all foreign, federal, state and local income and all state and local sales and use Tax Returns relating to any and all Taxes concerning or attributable to the Company, WW or any Subsidiary for the Company filed for all periods since December 31, 2002past two (2) years.
(vii) There 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 except for liens for Taxes not yet due and payable (collectively, "Liens") on the assets of the Company Company, WW or any Subsidiary relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii) The Company Stockholder has (a) never been a member no Knowledge of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability basis for the Taxes assertion of any person (other than claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company) under Treas. Reg. § 1.1502-6 (, WW or any similar provision of state, 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 otherwiseSubsidiary.
(ix) The Company is not and has not beenNone of the Company's, at WW's or any time, a Subsidiary's assets are treated as "United States Real Property Holding Corporationtax-exempt use property" within the meaning of Section 897(c)(2168(h) of the Code.
(x) The Company There is not any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company, WW or any Subsidiary that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code.
(xi) Neither the Company, WW nor any Subsidiary 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, WW or any Subsidiary.
(xii) Neither the Company, WW nor any Subsidiary is a party to a tax sharing or allocation agreement nor does the Company, WW or any Subsidiary owe any amount under any such agreement.
(xiii) No adjustment relating to any Return filed by the Company, WW or any Subsidiary has been proposed formally or, to the Knowledge of the Stockholder, informally by any tax authority to the Company, WW or any Subsidiary or any representative thereof.
(xiv) Neither the Company, WW nor any Subsidiary has ever been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xv) Neither the Company, WW nor any Subsidiary has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that is distribution prior to the same as or substantially similar to one Mergers which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
series of related transactions" (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Mergers.
Appears in 2 contracts
Samples: Merger Agreement (Cendant Corp), Agreement and Plan of Reorganization (Cendant Corp)
Tax Returns and Audits. Except as set forth in Schedule 3.8:
(i) The Company has Healtheon as of the Closing will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") Returns relating to any and all Taxes concerning or attributable to the Company Healtheon or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has Healtheon as of the Closing: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No Healtheon has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the CompanyHealtheon, nor has the Company Healtheon executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Healtheon is presently currently in progress, nor has the Company Healtheon been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material Healtheon does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Healtheon Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and Healtheon has no knowledge of any basis for the Company has not incurred assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Healtheon has provided to the Company has made available to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of Healtheon's incorporation.
(vii) There are (and as of immediately following the Effective Time Date there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Liens on the assets of the Company Healtheon relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii) The Company Healtheon 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 Healtheon.
(aix) never been a member None of an affiliated group (Healtheon'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, including but not limited to the provisions of this Agreement, covering any employee or former employee of Healtheon that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) Healtheon has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Company), Code) owned by Healtheon.
(bxii) never been Healtheon is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company Healtheon owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company Healtheon is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" Healtheon's tax basis in a distribution its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeHealtheon's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Tax Returns and Audits. (i) The Company has prepared CKS 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 concerning or attributable to the Company or its operations. All Taxes required to be filed by CKS and each of its subsidiaries, except such Returns which are not material to CKS, and have been paid by the Company (whether or not all Taxes shown to be due on any Tax Return) have been paidsuch Returns.
(ii) The Company has paid all Taxes required Except as is not material to be paid CKS, CKS and has each of its subsidiaries as of the Effective Time will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No Except as is not material to CKS, neither CKS nor any of its subsidiaries has been delinquent in the payment of any Tax other than Taxes not yet due and payable nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge against CKS or any of the Company, proposed against the Companyits subsidiaries, nor has the Company CKS or any of its subsidiaries executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No Except as is not material to CKS, no audit or other examination of any Return of the Company CKS or any of its subsidiaries is presently in progress, nor has the Company CKS or any of its subsidiaries been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had Except as is not material to CKS, no adjustment relating to any Returns filed by CKS or any of its subsidiaries has been proposed formally or informally by any Tax authority to CKS or any of its subsidiaries or any representative thereof and, to the knowledge of CKS, no basis exists for any such adjustment which would be material liabilities to CKS.
(vi) Neither CKS nor any of its subsidiaries has any material liability for unpaid Taxes as of the date of the Closing Balance Sheet other than Taxes not yet due which have has not been accrued for or reserved on the Closing CKS Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available which is material to Parent or its legal counsel copies of all Tax Returns for the Company filed for all periods since December 31, 2002CKS.
(vii) There None of CKS's assets are (and immediately following treated as "tax-exempt use property" within the Effective Time there will bemeaning of Section 168(h) 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 payableCode.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)There is no contract, (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does plan or arrangement, including but not limited to the Company owe provisions of this Agreement, covering any employee or former employee of CKS or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount under any such agreementthat would not be deductible pursuant to Sections 280G, 404 or (c) no liability for 162 of the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwiseCode.
(ix) The Company Neither CKS 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 CKS.
(x) CKS is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required Neither CKS nor any of its subsidiaries is party to include or affected by any material income tax-sharing or material gain allocation agreement or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codearrangement.
(xiii) No holder The CKS Schedules list (y) any Tax exemption, Tax holiday or other Tax-sharing arrangement that CKS or any of Company Common Stock holds shares its subsidiaries has in any jurisdiction, including the nature, amount and lengths of Company Common Stock that are nonsuch Tax exemption, Tax holiday or other Tax-transferable sharing arrangement and subject (z) any expatriate tax programs or policies affecting CKS or any of its subsidiaries. Each of CKS and its subsidiaries is in compliance with all terms and conditions required to a substantial risk maintain any material Tax exemption, Tax holiday or other Tax-sharing arrangement or order of forfeiture within any Governmental Entity and the meaning of Section 83 consummation of the Code with respect to which a valid election under Section 83(b) transactions contemplated hereby will not have any adverse effect in any material respects on the continued validity and effectiveness of the Code has not been madeany such Tax exemption, Tax holiday or other Tax-sharing arrangement or order.
Appears in 2 contracts
Samples: Merger Agreement (CKS Group Inc), Agreement and Plan of Reorganization (Usweb Corp)
Tax Returns and Audits. Except as set forth in SCHEDULE 2.8:
(i) The Company has Company, as of the Effective Time, will have prepared and 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 operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has Company, as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has does not incurred have any knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, or its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of the Company's incorporation.
(vii) There are (and as of immediately following the Effective Time Date there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii) The Company has does not have any 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.
(aix) never been a member of an affiliated group (The Company's assets are not 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 is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 404, 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not and not, nor has not been, it been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The No adjustment relating to any Return filed by the Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended been proposed formally or, to qualify for tax free treatment under Section 355 the knowledge of the CodeCompany, informally by any tax authority to the Company or any representative thereof.
(xixv) The Company has not engaged Company's tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Merger Agreement (Netscape Communications Corp), Agreement and Plan of Reorganization (Citadel Technology Inc)
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the ------- Company [or Subsidiaries, as the case may be], or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Exchange Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances Liens of any sort (collectively, "Liens") on the assets of the Company the relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has Shareholders have 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 any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
Tax Returns and Audits. (i) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns"“RETURNS”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid be filed by the Company (whether or Company, except such Returns which are not material to the Company, and have paid all Taxes shown to be due on any Tax Return) have been paidsuch Returns. All such Returns are true, correct and complete in all material respects.
(ii) The Company has as of the Effective Time will have withheld and paid all Taxes required to be paid and has withheld or paid over, as appropriate, with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts state, local and/or foreign income taxes, Taxes pursuant to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution ActAct (“FICA”), Taxes pursuant to the Federal Unemployment Tax Act (“FUTA”) and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. The Company has not received a request for or an inquiry regarding a Return from any jurisdiction where it does not currently file a Return.
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereofthereof and, to the knowledge of the Company, no basis exists for any such adjustment which would be material to the Company.
(vvi) The Company had no material liabilities does not have any liability for unpaid Taxes as of the date of the Closing Balance Sheet which have has not been accrued for or reserved on the Closing Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, and the Company has not incurred any liability for Taxes other than in the ordinary course of business since the date of the Closing Company 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 Sheet. There is no lien for the Company filed for all periods since December 31, 2002.
(vii) There 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") Taxes on the assets of the Company relating to or attributable to Taxes other than Liens inchoate liens for Taxes not yet due and payabledue.
(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) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)There is no contract, (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company owe that, individually or collectively, could give rise to the payment of any amount under any such agreementthat would not be deductible pursuant to Sections 162, 280G or (c) no liability for 404 of the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwiseCode.
(ix) 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.
(x) The Company is not not, and has not been, been at any time, a "“United States Real Property Holding Corporation" real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes payable by 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)Company.
(xii) The Company will not be required has never been a member of a consolidated, combined or affiliated group or is a party to include or affected by any material income tax-sharing or material gain allocation agreement or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codearrangement.
(xiii) No holder The Company Schedules list (A) any Tax exemption, Tax holiday or other Tax-sparing arrangement that the Company has in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or other Tax-sparing arrangement and (B) any expatriate tax programs or policies affecting the Company. The Company Common Stock holds shares is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax-sparing arrangement or order of any Governmental Entity and the consummation of the transactions contemplated hereby will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sparing arrangement or order.
(xiv) The Company Common Stock that are non-transferable and is not a party to or otherwise subject to any arrangement entered into in anticipation of the Closing, not in accordance with past practice and not required by this Agreement, that could reasonably be expected to have the effect of (i) the recognition of a substantial risk deduction or loss before the Closing Date and a corresponding recognition of forfeiture within taxable income or gain by the meaning Company after the Closing Date or (ii) the recognition of taxable income or gain by the Company after the Closing Date without the receipt of or entitlement to a corresponding amount of cash.
(xv) Except as set forth in Schedule 2.7(b)(xv), no closing agreement, written ruling, or determination letter with respect to Taxes, or any equivalent written decision from a foreign jurisdiction, has been received from, and no closing or other similar agreement has been executed with, any Tax or other governmental authority that will be binding upon the Company after the Closing.
(xvi) The Company has properly withheld on all amounts paid to Persons located or incorporated outside of the United States and have paid the appropriate amounts withheld to the proper governmental authorities.
(xvii) The Company has not been a party to a transaction intended to qualify under Section 83 355 of the Code with respect to which a valid election under Section 83(b(whether as distributing or distributed company) of within the Code has not been madelast five years.
Appears in 2 contracts
Samples: Merger Agreement (One2one Living Corp), Merger Agreement (Terra Tech Corp.)
Tax Returns and Audits. (i) The Company Each of Parent and the Merger Sub has prepared and timely filed all material Returns required federalto be filed by it, state, local and foreign returns, estimates, information statements such Returns are true and reports ("Returns") relating to any correct in all material respects and have been completed in all material respects in accordance with applicable Law. Each of Parent and the Merger Sub has paid all Taxes concerning or attributable to the Company or its operations. All Taxes it is required to have been paid by the Company pay (whether or not shown on any Tax Return) have been paid).
(ii) The Company Each of Parent and the Merger Sub has complied in all material respects with all applicable Laws relating to the payment, reporting and withholding of Taxes (including, without limitation, withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471, 1472, 1473, and 1474 of the Code or similar provisions under any federal, state, local or foreign Law), has, within the time and in the manner prescribed by Law, withheld from employee wages or consulting compensation and timely paid over to the proper governmental authorities (or is properly holding for such timely payment) all Taxes amounts required to be paid and has so withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) under all federalapplicable Laws, including federal and state income Taxes, state, local and foreign income taxes and social security charges and sales, use or other similar feesTaxes, Federal Insurance Contribution Act, Federal Unemployment Medicare, relevant state income and employment Tax Act withholding Laws, and other Taxes required to be withheld has timely filed all withholding and sales or paiduse Tax Returns, for all periods.
(iii) No Each of Parent and the Merger Sub has never been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the CompanyParent, nor has the Company Parent executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) Each of Parent and the Merger Sub has disclosed on its federal income Tax Returns all positions that could give rise to a substantial understatement penalty under Section 6662 of the Code.
(v) No audit or other examination of any Return of the Company Parent or Merger Sub is presently in progress, nor has the Company Parent or Merger Sub been notified by any Tax authority (orally or in writing writing, formally or informally) of any threat or plan to request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(vvi) The Company had Each of Parent and the Merger Sub has no material liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which that have not been accrued or reserved on the Closing Current Parent Balance Sheet, whether asserted or unasserted, contingent or otherwise, and Neither Parent nor the Company Merger Sub has not incurred any liability no Liability for Taxes since the date of the Closing Current Parent Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vivii) The Company Each of Parent and the Merger Sub has made available to Parent or its legal counsel Company copies of all Tax Returns for Parent and the Company Merger Sub filed for all periods since December 31its inception, 2002together with all related workpapers and analysis created by or on behalf of Parent and the Merger Sub.
(viiviii) There are (and and, immediately following the Effective Time Time, there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Liens on the assets of the Company Parent or Merger Sub relating to or attributable to Taxes other than customary Liens for Taxes not yet due and payable.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company is not and Parent has not never been, at any time, a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either 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 Parent or Merger Sub that could affect the Company’s Liability for Taxes for any period after the Closing Date. Neither Parent nor the Merger Sub will be required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing as a "distributing corporation" result of any: (i) adjustment pursuant to Section 481 of the Code (or a "controlled corporation" any corresponding or similar provision of federal, state, local or foreign Tax Law); (ii) installment sale or open transaction disposition made on or prior to the Closing; (iii) prepaid amount received on or prior to the Closing; (iv) intercompany transaction or any excess loss account described in a distribution of stock intended to qualify for tax free treatment Treasury Regulations under Section 355 1502 of the Code; (v) election with respect to income from the discharge of indebtedness under Section 108(i) of the Code; or (vi) any similar election, action or agreement that would have the effect of deferring Liability for Taxes of Parent or Merger Sub from any period ending on or before the Closing Date to any period ending after the Closing Date.
(xi) The Company has not engaged With respect to any stock or other property transferred in connection with the performance of services for Parent or Merger Sub, a "reportable transaction," as set forth valid Section 83(b) election in Treas. Reg. § 1.6011-4(b) or any transaction that is accordance with the same as or substantially similar to one requirements of the types Code has been made, copies of transactions that the Internal Revenue Service has determined which have been made available 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)Company.
(xii) The Company will Except as set forth in Section 3.8(a)(xii) of the Parent Schedule of Exceptions, Parent is not be required party to include any material income Contract, Parent Employee Plan, employment agreement or material gain other arrangement that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code and the regulations and other guidance promulgated thereunder. Parent is not a party to, or exclude otherwise obligated under, any material deduction Contract, Parent Employee Plan, employment agreement or material loss from Taxable income as other arrangement that provides for a result gross up of any closing agreement under Tax imposed by Section 7121 409A of the Code.
. Each such nonqualified deferred compensation plan has been operated in compliance in all material respects in both form and in operation with Section 409A of the Code. No Outstanding Parent Options or other right to acquire capital stock of Parent (xiiiA) No holder has an exercise price that has ever been less than the fair market value of Company Common Stock holds shares the underlying equity as of Company Common Stock that are non-transferable and subject to a substantial risk the date such option or right was granted, (B) has any feature for the deferral of forfeiture compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights (within the meaning of Section 83 409A of the Code Code), (C) has been granted after December 31, 2004, with respect to which a valid election any class of stock of Parent that is not “service recipient stock” (within the meaning of applicable regulations under Section 83(b) 409A of the Code Code) or (D) has not been madefailed to be properly accounted for in accordance with GAAP in the Parent Financial Statements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ikena Oncology, Inc.), Agreement and Plan of Merger (Ikena Oncology, Inc.)
Tax Returns and Audits. (ia) The As of the Effective Time, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by completed in accordance with applicable law (other than Taxes not yet due for which adequate reserves may have been established on the Current Balance Sheet).
(b) As of the Effective Time, the Company (whether or not shown on any Tax ReturnA) will have been paid.
(ii) The Company has paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld withheld, (other than Taxes not yet due for which adequate reserves may have been established on the Current Balance Sheet) and (B) will have accrued on the Current Balance Sheet all unpaid Taxes (whether or paidnot due) attributable to all periods through the date of the Current Balance Sheet and will not have incurred any liability for Taxes for the period from the date of the Current Balance Sheet to the Effective Time other than in the ordinary course of business, consistent with past practice.
(iiic) No The Company has not been delinquent in the payment of any Tax (other than items for which adequate reserves may have been established on the Current Balance Sheet) nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(ivd) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. .
(e) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereof.
(vf) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice.
(vig) The Company has made available to Parent Buyer or its legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(viih) There 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.
(viiii) None of the Company's assets are treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(j) The Company is not subject to any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an expense under applicable law (including, without limitation, Sections 280G, 404 and 162(m) of the Code).
(k) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (af) never been a member asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by the Company.
(within the meaning of Code §1504(a)l) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixm) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Etoys Inc), Merger Agreement (Etoys Inc)
Tax Returns and Audits. (i) The As of the Closing, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Closing, the Company has (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld, and (B) will have accrued all Taxes attributable to the period between September 30, 1998 and the Closing and will not have incurred any liability for Taxes for such period other than in the ordinary course of business, consistent with past practice.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company has occurred in the past five taxable years of the Company or is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local, tribal and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the 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 foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002the last five taxable years of the Company.
(vii) There are (and immediately following the Effective Time 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.
(viii) The Neither the Company nor the Stockholders has Knowledge of any 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.
(aix) never been a member None of an affiliated group (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, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount in consideration of the performance of services for the Company by such employee or former employee that would not be deductible for income tax purposes as an expense under applicable law.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwisethis Agreement.
(ixxiii) The Company is not and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The No adjustment relating to any Return filed by the Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended been proposed formally or, to qualify for tax free treatment under Section 355 the Knowledge of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or the Stockholders, informally by any tax authority to the Company 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)representative thereof.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gametech International Inc), Stock Purchase Agreement (Gametech International Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.15:
(i) The Company 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 concerning or attributable to the Company or its operations. All Taxes (“Returns”) required to have been paid be filed by the Company (whether or not shown on with any Tax Return) have been paid.
(ii) authority 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 has paid all Taxes required shown to be paid due and has payable on such Returns.
(ii) All Taxes that the Company is required by law to withhold or collect have been duly withheld or paid with respect to its Employees collected, and other third parties (and have been timely paid over any withheld amounts to the appropriate Taxing authority) all federal, state proper governmental authorities to the extent due and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidpayable.
(iii) No The Company is not delinquent in the payment of any material Tax nor is there any material Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any unexpired waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing which waiver or extension is presently in effect.
(iv) No To the knowledge of the Company, no audit or other examination of any Return of the Company by any Tax authority is presently in progress, progress nor has the Company been notified in writing of any request for such an audit or other examination. .
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing writing, formally or informally, by any tax Tax authority to the Company or any representative thereof.
(vvi) The Company had has no liability for any material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued for or reserved on the Closing Balance SheetCompany’s balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, and which is material to the Company has not incurred Company, other than any liability for unpaid Taxes that may have accrued since the date end of the Closing Balance Sheet other than most recent fiscal year in connection with the Ordinary Course operation 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, 2002.
(vii) There 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 business of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has (a) never been a member in the ordinary course of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent business, none of which was Company)is material to the business, (b) never been a party to any tax sharing, indemnification results of operations or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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) financial condition of the CodeCompany.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Global Logistics Acquisition CORP), Stock Purchase Agreement (CS China Acquisition Corp.)
Tax Returns and Audits. To the knowledge of the Company: (i) The Company has prepared and filed all required federal, statestate and local Tax Returns of the Company have been accurately prepared and duly and timely filed, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid by the Company (whether or not shown on any Tax Return) have been paid.
(ii) The Company has paid all federal, state and local Taxes required to be paid and has withheld or paid with respect to its Employees the periods covered by such returns have been paid; (ii) the Company is not and other third parties (and paid over has not been delinquent in the payment of 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, Federal Unemployment Tax Act and other Taxes required to be withheld or paid.
Tax; (iii) No the Company has not had a Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor it and has the Company not executed any a waiver of any statute of limitations on or extension of the period for the assessment or collection of any Tax with continuing effect.
Tax; (iv) No audit none of the Company’s federal income Tax Returns nor any state or other examination local income or franchise Tax Returns has been audited by governmental authorities; (v) the reserves for Taxes reflected on the Balance Sheets are and will be sufficient for the payment of all unpaid Taxes payable by the Company as of the Balance Sheet Dates; (vii) since the Balance Sheet Dates, the Company has made adequate provisions on its books of account for all Taxes with respect to its business, properties and operations for such period; (viii) the Company has withheld or collected from each payment made to each of its employees the amount of all Taxes (including, but not limited to, federal, state and local income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be withheld or collected therefrom, and has paid the same to the proper Tax receiving officers or authorized depositaries; (ix) there are no federal, state, local or foreign audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Return Tax Returns of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
now pending; (vx) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred received any liability for notice of any proposed audits, investigations, claims or administrative proceedings relating to Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
or any Tax Returns; (vixi) 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 31is not obligated to make a payment, 2002.
(vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been nor is it a party to any tax sharingagreement that under certain circumstances could obligate it to make a payment, indemnification or allocation agreement, nor does that would not be deductible under Section 280G of the Code; (xii) the Company owe has not agreed nor is required to make any amount adjustments under any such agreement, or (cSection 481(a) no liability for of the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 Code (or any similar provision of state, local or and foreign law, including ) by reason of a change in accounting method or otherwise for any arrangement Tax period for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise.
which the applicable statute of limitations has not yet expired; (ixxiii) The the Company is not a party to, is not bound by and has does not beenhave any obligation under, at any timeTax sharing agreement, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
Tax indemnification agreement or similar contract or arrangement, whether written or unwritten (x) The Company has not constituted either a "distributing corporation" collectively, “Tax Sharing Agreements”), nor does it have any potential liability or a "controlled corporation" in a distribution of stock intended obligation to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income Person as a result of of, or pursuant to, any closing agreement under Section 7121 of the CodeTax Sharing Agreements.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Merger Agreement (Smart Kids Group Inc.), Merger Agreement (Smart Kids Group Inc.)
Tax Returns and Audits. Except as set forth in Section 2.7 of ---------------------- the Disclosure Schedule:
(i) The Company OWP has prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company OWP or ------- its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company OWP: (A) has paid or accrued all Taxes it is required to be paid pay or accrue and (B) has withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No OWP has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the CompanyOWP, nor has the Company OWP executed any waiver of any statute of limitations on or extension of extended the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company OWP is presently in progress, nor has the Company OWP been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had OWP has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheetagainst in OWP Financials Statements (as defined below), whether asserted or unasserted, contingent or otherwise, and the Company OWP has not incurred any liability for Taxes since the date of the Closing Balance Sheet February 29, 2000 other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice.
(vi) The Company OWP has made available provided to Parent or its legal counsel DoveBid copies of all Tax federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002the date of OWP's incorporation.
(vii) There are (and as of immediately following the Effective Time 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 OWP relating to or attributable to Taxes Taxes, other than ----- Liens for Taxes not yet due and payablepayable as of such time.
(viii) The Company There is no 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 OWP.
(ix) None of OWP'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 OWP is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of OWP that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G, 404 or 162(m) of the Code.
(xi) OWP 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 (af) never asset (as defined in Section 341(f)(4) of the Code) owned by OWP.
(xii) OWP is not a party to a tax sharing or allocation agreement nor does OWP owe any amount under any such agreement. OWP has not been a member of an affiliated group (within the meaning of Code §Section 1504(a)) of the Code) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwisereturn.
(ixxiii) The Company OWP is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company No adjustment or deficiency relating to any Return filed or required to be filed by OWP has been proposed formally or informally by any tax authority to OWP or any representative thereof.
(xv) OWP utilizes the cash method of accounting for U.S. federal income tax purposes.
(xvi) OWP has not constituted either a "distributing corporation" or a "controlled corporation" distributed the stock of any corporation in a distribution transaction satisfying the requirements of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Code since April 16, 1997. No Company stock has not engaged been distributed in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that is satisfying 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).
(xii) The Company will not be required to include any material income or material gain or 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 requirements of Section 83 355 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madesince April 16, 1997.
Appears in 2 contracts
Samples: Merger Agreement (Dovebid Inc), Merger Agreement (Dovebid Inc)
Tax Returns and Audits. (i) The As of the Closing Date, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid by the Company (whether operations and such Returns are or not shown on any Tax Return) have been paidwill be true and correct.
(ii) The As of the Closing Date, the Company has will have paid all Taxes it is required to be paid pay (not including any Taxes of the Company caused by an independent action taken by Acquiror (or an affiliate of Acquiror) after the Closing) and has will have withheld or paid with respect to its Employees and other third parties persons (and timely paid over any withheld amounts to the appropriate Taxing taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution ActFICA, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on in the Closing Balance SheetCompany Financials, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet July 31, 2005 other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel Acquiror, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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 customary Liens for Taxes not yet due and payable.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 2 contracts
Samples: Merger Agreement (Digital Music Group, Inc.), Merger Agreement (Digital Music Group, Inc.)
Tax Returns and Audits. (i) The Company has (1) prepared and filed all required U.S. federal, state, local and foreign non-U.S. returns, estimates, amendments, information statements and reports reports, including any attachments, appendices and addenda thereto ("“Returns"”) relating to any and all Taxes concerning or attributable to of the Company or its operations. All and such Returns are true and correct in all material respects and have been completed in all material respects in accordance with applicable law, and (2) paid all Taxes it is required to have been paid by the Company pay (whether or not shown to be due on any Tax Return) have been paid).
(ii) The Company has paid all Taxes required to be paid and has or withheld or paid with respect to its Employees (as defined in Section 2.21(a) hereof) and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all U.S. federal, state and foreign non-U.S. income taxes and social security charges and similar fees, Federal Insurance Contribution ActAct amounts, Federal Unemployment Tax Act amounts and other Taxes required to be withheld, and has timely paid over any such withheld or paidTaxes to the appropriate authorities.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the Knowledge of the Company, no audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax Tax authority to the Company or any representative thereof. No claim has ever been made 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.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, the Company had no liabilities for unpaid Taxes which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness. The Company has identified all uncertain tax positions contained in all Returns filed by the Company and has established adequate reserves and made any appropriate disclosures in the Financial Statements in accordance with the requirements of Financial Interpretation Notice 48 of FASB 109.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax Returns for the Company filed for all periods since December 31, 20022004.
(vii) There 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") Liens on the assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company has (a1) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b2) never been a party to any tax Tax sharing, indemnification indemnification, allocation or allocation similar agreement, nor does the Company owe any amount under any such agreement, or (c3) no liability for the Taxes of any person (other than the Company) under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, law (including any arrangement for group Tax or consortium relief within a jurisdiction or similar arrangement)), as a transferee or successor, by contract or agreement, or otherwise, and (4) never been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) 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.
(x) The Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in transaction under Treas. Reg. § 1.6011-4(b) or any ), including 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 Treas. Reg. § 1.6011-4(b)(2).
(xii) Section 2.10(b)(xii) of the Disclosure Schedule sets forth the following information with respect to the Company: (1) the basis of the Company 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 arising out of any deferred intercompany transaction as defined in Treas. Reg. § 1.1502-13 or any similar provision of applicable law.
(xiii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of (1) any change in method of accounting under Section 481 of the Code, (2) closing agreement under Section 7121 of the Code, (3) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or in the case of each of (1), (2) and (3), under any similar provision of applicable law), (4) installment sale or open transaction disposition or (5) prepaid amount.
(xiiixiv) No holder The Company uses the accrual method of accounting for tax purposes.
(xv) The Company Common Stock holds shares of Company Common Stock that are non-transferable and is not subject to Tax in any jurisdiction other than its country of incorporation or formation by virtue of having a substantial risk permanent establishment or other place of forfeiture within business or by virtue of having a source of income in that country.
(xvi) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order applicable to it (“Tax Incentive”) and the meaning of Section 83 consummation of the Code with respect to which a valid election under Section 83(b) transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of the Code has not been madeany such Tax Incentive.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns"“RETURNS”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid be filed by the Company (whether or Company, except such Returns which are not material to the Company, and have paid all Taxes shown to be due on any Tax Return) have been paidsuch Returns. All such Returns are true, correct and complete in all material respects.
(ii) The Company has as of the Effective Time will have withheld and paid all Taxes required to be paid and has withheld or paid over, as appropriate, with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate, state and local and/or foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidtaxes.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. The Company has not received a request for or an inquiry regarding a Return from any jurisdiction where it does not currently file a Return.
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereofthereof and, to the knowledge of the Company, no basis exists for any such adjustment which would be material to the Company.
(vvi) The Company had no material liabilities does not have any liability for unpaid Taxes as of the date of the Closing Balance Sheet which have has not been accrued for or reserved on the Closing Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, and the Company has not incurred any liability for Taxes other than in the ordinary course of business since the date of the Closing Company 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 Sheet. There is no lien for the Company filed for all periods since December 31, 2002.
(vii) There 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") Taxes on the assets of the Company relating to or attributable to Taxes other than Liens inchoate liens for Taxes not yet due and payabledue.
(vii) No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes payable by the Company.
(viii) The Company has (a) never been a member of an a consolidated, combined or affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been or is a party to or affected by any tax sharing, indemnification tax-sharing or allocation agreement, nor does the Company owe any amount under any such agreement, agreement or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company has no (A) any Tax exemption, Tax holiday or other Tax-sparing arrangement that the Company has in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or other Tax-sparing arrangement and (B) any expatriate tax programs or policies affecting the Company. The Company is not in full compliance with all terms and has not beenconditions of any Tax exemption, at Tax holiday or other Tax-sparing arrangement or order of any time, a "United States Real Property Holding Corporation" within Governmental Entity and the meaning of Section 897(c)(2) consummation of the Codetransactions contemplated hereby will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sparing arrangement or order.
(x) The Company has is not constituted either a "distributing corporation" party to or a "controlled corporation" otherwise subject to any arrangement entered into in a distribution of stock intended to qualify for tax free treatment under Section 355 anticipation of the CodeClosing, not in accordance with past practice and not required by this Agreement, that could reasonably be expected to have the effect of (i) the recognition of a deduction or loss before the Closing Date and a corresponding recognition of taxable income or gain by the Company after the Closing Date or (ii) the recognition of taxable income or gain by the Company after the Closing Date without the receipt of or entitlement to a corresponding amount of cash.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) No closing agreement, written ruling, or determination letter with respect to Taxes, or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service equivalent written decision from a foreign jurisdiction, has determined to be a tax avoidance transaction been received from, and identified by notice, regulation, no closing or other form of published guidance as a "listed transaction"similar agreement has been executed with, as set forth in Treas. Reg. § 1.6011-4(b)(2)any Tax or other governmental authority that will be binding upon the Company after the Closing.
(xii) The Company will not be required has properly withheld on all amounts paid to include any material income Persons located or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 incorporated outside of the CodeUnited States and have paid the appropriate amounts withheld to the proper governmental authorities.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Except as set forth in Section 2.11(b)(i) of the Disclosure Schedule, each of the Company and the Subsidiary has (A) prepared and timely (taking into account extensions) filed (or has had prepared and timely filed on its behalf) all required federalreturns, state, local and foreign returnsdeclarations, estimates, information returns, statements and reports with respect to Taxes, including any schedule or attachment thereto and amendment thereof ("“Returns"”) relating to any and all Taxes concerning or attributable to of the Company or its operations. All Taxes and the Subsidiary required to have been filed, and such Returns are true and correct in all material respects and (B) timely paid by the Company all Taxes due (whether or not shown on any Return). Each of the Company and the Subsidiary has adequately provided for, in its books of account and related records, liability for all unpaid Taxes, being current Taxes not yet due and payable. Neither the Company nor the Subsidiary has incurred any liability for Taxes since the date of the Current Balance Sheet other than in the ordinary course of business. Neither the Company nor the Subsidiary (or any predecessor of either) has ever been a member of an affiliated, consolidated, combined, unitary or similar group for Tax Return) have been paidpurposes.
(ii) The Each of the Company and the Subsidiary has paid all Taxes required to be paid and has or withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federal, state and foreign income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution ActAct amounts, Federal Unemployment Tax Act amounts and other Taxes required to be withheld, and has paid over any such withheld or paidTaxes to the appropriate authorities.
(iii) No There is no Tax deficiency is outstanding, assessed oror proposed, to the Knowledge of the Companyin writing, proposed against the Company, nor has Company or the Subsidiary and neither the Company nor the Subsidiary has executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit action, audit, dispute, claim or other examination of any Return of the Company or the Subsidiary with respect to Taxes is presently in progress, progress nor has does the Company been notified in writing have Knowledge of any request for such an audit a proposed or other examinationthreatened action, audit, dispute, claim or examination of the Company of the Subsidiary with respect to Taxes. No adjustment relating to any Return filed by the Company or the Subsidiary has been proposed proposed, in writing writing, by any tax authority to taxing authority. No written claim has ever been made by a jurisdiction in which the Company or any representative thereofthe Subsidiary does not file Returns that it is or may be subject to taxation by that jurisdiction.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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, 2002.
(vii) There 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") Liens on the assets of the Company relating to or attributable to Taxes the Subsidiary for Taxes, other than Liens for Taxes not yet due and payable.
(viiivi) The Neither the Company nor the Subsidiary (A) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax Tax sharing, indemnification indemnification, allocation or allocation similar agreement, nor does the Company owe or owes any amount under any such an agreement, or (cB) no liability has any Liability for the Taxes of any person (other than Company) under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract operation of law or agreement, or otherwiseby contract.
(ixvii) The During the past five years, the Company is not and has not been, been at any time, time a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code. The Company has not made any payments, is not obligated to make any payments, and is not a party to any agreement that could obligate it to make payments that would result in a nondeductible expense under Section 280G of the Code (in each case, subject to the provisions of Section 4.7(b) below).
(xviii) The During the past five years, the Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 or Section 368 of the Code.
(xi) . The Company has not agreed to and is not required to make by reason of a change in accounting method any adjustment under Section 481 of the Code or comparable provision of other Tax law (and has no Knowledge of a proposed or threatened change in accounting method). The Company is not subject to any private ruling from or agreement with a taxing authority that would have a continuing effect after the Closing Date. The Company uses the accrual method for income Tax purposes.
(ix) The Company is not a party to any arrangement treated as a partnership for federal income Tax purposes. Neither the Company nor the Subsidiary will be required to include any item of income in taxable income for a period or portion thereof ending after the Closing Date as a result of any installment sale or open transaction made on or prior to the Closing Date, prepaid amount received on or prior to the Closing Date, or cancellation of indebtedness income arising on or prior to the Closing Date.
(x) Neither the Company nor the Subsidiary has engaged in a "reportable transaction," as set forth in transaction under Treas. Reg. § 1.6011-4(b) or any ), including 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 Treas. Reg. § 1.6011-4(b)(2).
(xiixi) The Neither the Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as nor the Subsidiary has a result power 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 83 of the Code attorney currently in effect with respect to which a valid election under Section 83(b) of the Code has not been madeTaxes.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.8:
(i) The Company has as of the Effective Time will have prepared and 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 operations and such Returns were true and correct in all material respects as of the date on which they were filed or as subsequently amended and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid all Taxes required shown to be paid due on the Returns or will be contesting them in good faith and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No Tax deficiency Except as is outstanding, assessed or, not material to the Knowledge of the Company, the Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency outstanding, proposed or assessed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination by any Governmental Entity of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The As of December 31, 1996, the Company had no material did not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have were not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of the Company's incorporation.
(vii) There 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 None of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payableCompany's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(viii) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162 of the Code.
(ix) 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 (af) never been a member asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by the Company.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Quickturn Design Systems Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.11: ----------------------
(i) The Company has as of the Effective Time will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") required to be filed relating to any and all ------- Taxes concerning or attributable to the Company or its operations. All Taxes required to ; such Returns have been paid by completed in accordance with applicable law and, to the Company (whether or not shown on any Tax Return) have been paidknowledge of the Company, such Returns are true and correct.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued (in accordance with GAAP) all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of Company's incorporation.
(vii) There are (and as of immediately following the Effective Time 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 Taxes, except Liens for relating to 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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, will, or would reasonably be expected to, give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The tax basis of assets utilized by the Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Summit Design Inc)
Tax Returns and Audits. (i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the ------- Company or its operations. All Taxes required to , and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) is no liensmortgage, pledges, charges, claims, restrictions on transfer, mortgagespledge, security interests interest or lien or other encumbrances encumbrance (each a "Lien") of any sort (collectively, "Liens") on the assets of the Company ---- the relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has Shareholders have 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 any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the cash method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has prepared and each of its Subsidiaries have timely filed all required material federal, state, local and foreign returns, estimates, information statements and reports and all other filings ("“Returns"”) relating to any and all Taxes concerning or attributable required to be filed by the Company or any of its operationsSubsidiaries with any Tax authority. All Taxes required to Such Returns are true and correct in all material respects and have been paid by completed in accordance with applicable Legal Requirements and the Company (whether and each of its Subsidiaries have timely paid or not withheld and paid to the appropriate Governmental Entity all Taxes shown to be due on any Tax Return) have been paidsuch Returns.
(ii) The Neither the Company nor any of its Subsidiaries has paid all Taxes required to be paid and has withheld or paid with respect to its Employees and other third parties (and paid over been delinquent in the payment of any withheld amounts to the appropriate Taxing authority) all federalmaterial Tax, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paid.
(iii) No nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed in writing against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iviii) No audit or other examination of any Return of the Company or any of its Subsidiaries 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. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(viv) The Neither the Company had no material nor any of its Subsidiaries has any liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any liability for Taxes since the date of the Closing Company Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(viv) The Company has made available to Parent or its legal counsel copies of all Tax Returns for Neither the Company filed for all periods since December 31, 2002.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances nor any 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 its Subsidiaries has (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never ever been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no any liability for the Taxes of any person (other than Company) Company or any of its Subsidiaries), under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, law including any arrangement for group or consortium Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwiseotherwise and (d) to the Company’s Knowledge, ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ixvi) The No adjustment relating to any Return filed by the Company is not and or any of its Subsidiaries has not been, at been proposed in writing by any time, a "United States Real Property Holding Corporation" within Tax authority to the meaning Company or any of Section 897(c)(2) of the Codeits Subsidiaries or any representative thereof.
(xvii) The Neither the Company nor any of its Subsidiaries has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xiviii) The None of the Company or any of its Subsidiaries has not 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 Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "listed transaction", as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Merger Agreement (Tarantella Inc)
Tax Returns and Audits. (i) The Company Each Solar Entity has (a) prepared and timely filed all required federal, state, local provincial, local, municipal and foreign returns, estimates, information statements and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to of the Company or its operations. All Solar Entities and such Returns are true and correct in all material respects and have been completed in accordance with applicable Law and (b) timely paid all Taxes they are required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company Each Solar Entity has paid withheld with respect to the Employees and other third parties, all federal, state, provincial and foreign Taxes required to be withheld, and, to the extent required, have timely paid and has such Taxes withheld or paid with respect to its Employees and 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, Federal Unemployment Tax Act and other Taxes required to be withheld or paidauthorities.
(iii) No Solar Entity has been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed in writing against the Companysuch Solar Entity, nor has the Company any Solar Entity executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) Purchaser or its legal counsel has received copies of all Tax Returns for the Solar Entities filed for all periods beginning January 1, 2005, or later.
(v) No audit or other examination of any Return of the Company any Solar Entity is presently in progress, nor has the Company any Solar Entity been notified orally or in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(vvi) The Company had no material No Solar Entity has any liabilities for unpaid Taxes as for any period or portion of any period ending on or before the date of the Closing Balance Sheet Date which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company no Solar Entity has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course 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, 2002business.
(vii) There are (and immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Liens on the assets of the Company any Solar Entity relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. There is no 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 any Solar Entity.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been No Solar Entity is a party to any tax Tax sharing, indemnification or allocation agreement, agreement nor does the Company any Solar Entity owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Share Exchange Agreement (Trans-India Acquisition Corp)
Tax Returns and Audits. (i) The Company has as of the Effective Time will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("ReturnsRETURNS") relating to any and all Taxes concerning or attributable to the Company Company, or its operations. All Taxes required to operations and such Returns are true and correct in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There 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, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes relating to tax periods prior to the Effective Time other than Liens for Taxes 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.
(aix) never been a member As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under applicable law.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's tax books and records.
(xii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiii) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution is an accrual basis taxpayer and its tax basis and its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cybergold Inc)
Tax Returns and Audits. (i) The Company has as of the Effective Time will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operationsoperations and such Returns are true and correct and have been completed in accordance with applicable law, except to the extent that such failures to file, to be true and correct or to be completed in accordance with applicable law, as applicable, individually or in the aggregate would not result in liability to the Company or the Surviving Corporation in excess of $50,000 or otherwise have a Material Adverse Effect on the Company. All The Company as of the Effective Time: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have been paid by the Company (whether or not shown on any Tax Return) have been paid.
(ii) The Company has paid all Taxes required to be paid and has withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paid.
(iii) No withheld. To the Company's knowledge, there is no Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the CompanyCompany that is not adequately reserved for and reflected on the Company Financials, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effect.
(iv) No Tax. To the Company's knowledge, no audit or other examination of any Return of the Company is presently in progressprogress as of the date of this Agreement, nor has the Company been notified in writing as of or prior to the date of this Agreement of any request for such an audit or other examination. No adjustment relating to any Return filed by the The Company has been proposed in writing by no knowledge of any tax authority to basis for the Company or assertion of any representative thereof.
(v) The Company had no material liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Balance Sheet, Sheet whether asserted or unasserted, contingent or otherwiseotherwise attributable to the Company, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) its assets or operations. The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002.
(vii) 1993. There are (and as of immediately following the Effective Time 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.
(viii) Taxes. The Company has (a) never been a member no knowledge of an affiliated group (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. None of the Company's assets are treated as "tax-exempt use property" within the meaning of Code §1504(a)Section 168(h) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group of the common parent of which was CompanyCode. Except as set forth on Schedule 2.8(b), as of the Effective Time, there will not be any contract, agreement, plan or arrangement to which the Company is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code. 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 (bf) never been asset (as defined in Section 341(f)(4) of the Code) owned by the Company. The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Tax Returns and Audits. (i) The Company (and any consolidated, combined, unitary or aggregate group for Tax purposes of which the Company is or has prepared been a member), (A) has properly completed and timely filed all required foreign, federal, state, local and foreign returnsmunicipal tax and information returns related to Taxes (the “Returns”) required to be filed by it or on its behalf, estimates, information statements and reports ("Returns"B) relating to any and has timely paid all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been be paid by it for which payment was due, (C) has established an adequate accrual or reserve for the payment of all Taxes payable in respect of the periods or portions thereof prior to the Balance Sheet Date (which accrual or reserve as of the Balance Sheet Date is fully reflected on the Company Balance Sheet), (whether D) has made (or not shown will make on any a timely basis) all estimated Tax Returnpayments required to be made, and (E) have been paidhas no Liability for Taxes in excess of the amount so paid or accruals or reserves so established. All such Returns are true, correct and complete, and the Company has provided Parent with true and correct copies of such Returns.
(ii) The Company has paid all Taxes required to be paid is not delinquent in the payment of any Tax or in the filing of any Returns, and has withheld no deficiencies for any Tax have been threatened, claimed, proposed or paid with respect to its Employees and other third parties (and paid over any withheld amounts to assessed against the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidCompany.
(iii) No Tax deficiency is outstanding, assessed or, to The Company has not received any notification from the Knowledge of Internal Revenue Service (the “IRS”) or any other Taxing authority regarding any material issues that (i) are currently pending before the Internal Revenue Service or any other Taxing agency or authority (including any sales or use Taxing authority) regarding the Company, proposed against or (ii) have been raised by the Company, nor has IRS or other Taxing agency or authority and not yet finally resolved. No Return of the Company executed is under audit by the IRS or any waiver of other Taxing agency or authority and any statute of limitations on or extension such past audits (if any) have been completed and fully resolved to the satisfaction of the period for applicable taxing agency or authority conducting such audit and all Taxes determined by such audit to be due from the assessment Company have been paid in full to the applicable taxing agencies or collection of any Tax with continuing effectauthorities or adequate reserves therefore have been established and are reflected in the Company Balance Sheet.
(iv) No audit or other examination Tax liens are currently in effect against any of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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, 2002.
(vii) There 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 liens that arise by operation of law for Taxes not yet due and payable.
(viii) The . There is not in effect any waiver by the Company has (a) never been a member of an affiliated group (within the meaning any statute of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party limitations with respect to any tax sharing, indemnification or allocation agreement, Taxes nor does has the Company owe agreed to any amount under extension of time for filing any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company is not and Return that has not been, at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) been filed. The Company has not constituted either consented to extend to a "distributing corporation" date later than the Agreement Date the period in which any Tax may be assessed or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Codecollected by any taxing agency or authority.
(xi) The Company has not 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).
(xiiv) The Company will not be required to include any material income or material gain in income, or exclude any material item of deduction or material loss from from, Taxable income for any Taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a Taxable period ending on or prior to the Closing Date; (ii) “closing agreement under agreement” described in Section 7121 of the CodeCode (or any corresponding or similar provision of state, local, or foreign Tax law); (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local, or foreign Tax law); (iv) installment sale or open transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received or accrued on or prior to the Closing Date.
(xiiivi) No holder taxable income or liability for Taxes has been realized or incurred (or prior to and including the Effective Time will be realized or incurred) since the Balance Sheet Date other than in the ordinary course 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madebusiness.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company ------- Company, or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances Liens of any sort (collectively, "Liens") on the assets of the Company the relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Principal Stockholders have 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 any material assets of the Company.
(ix) As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company has that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an expense under Sections 162, 280G or 404 of the Code.
(ax) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 2.10 of the Company Disclosure Schedule:
(i) The Company has as of the Closing will have prepared and timely filed all required federal, and state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All operations and will have paid or accrued all Taxes required to as shown as owing on such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld withheld, and (B) will have paid or paidhave accrued on the Current Balance Sheet all Taxes attributable to the periods covered by the Current Balance Sheet and will not have incurred any liability for Taxes for the period from the date of the Current Balance Sheet through the Closing other than in the ordinary course of business.
(iii) No There is no material Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has and the Company has not executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit To the Company's and Principal Shareholders' knowledge, no audit, or to the Company's and Principal Shareholders' knowledge, other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available to Parent NEON or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(viivi) There To the Company's and Principal Shareholders' knowledge, there 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.
(vii) Neither the Company nor any Principal Shareholder 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 the Company.
(viii) None of the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(ix) As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could be treated as an excess parachute payment within the meaning of Section 280G of the Code or could otherwise give rise to the payment of any amount to such employee or former employee that would not be deductible by the Company as an expense under applicable law.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (af) never been a member asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by the Company.
(within the meaning of Code §1504(a)xi) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwisethis Agreement.
(ixxii) Each of the Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's tax books and records.
(xiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Share Acquisition Agreement (New Era of Networks Inc)
Tax Returns and Audits. Except as set forth in Section 2.10 of ---------------------- the Disclosure Letter:
(i) The Company has as of the Effective Time will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports (collectively, the "Returns") relating to any and all Taxes concerning or attributable to the Company Company, or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extended the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There 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 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.
(aix) never been a member As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including, but not limited to, the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under applicable law.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's tax books and records.
(xii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiii) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution is an accrual basis taxpayer and its tax basis and its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tut Systems Inc)
Tax Returns and Audits. Except as set forth in Schedule 3.15 hereto:
(i) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports relating to Taxes ("Returns") relating required to be filed by Company with any Tax authority 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 Subsidiary have paid all Taxes concerning or attributable shown to the Company or its operations. All Taxes required to have been paid by the Company (whether or not shown be due on any Tax Return) have been paidsuch Returns.
(ii) The All Taxes that the Company has paid all Taxes is required by law to be paid and has withhold or collect have been duly withheld or paid with respect to its Employees collected, and other third parties (and have been timely paid over any withheld amounts to the appropriate Taxing authority) all federal, state proper governmental authorities to the extent due and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidpayable.
(iii) No The Company has not been delinquent in the payment of any material Tax nor is there any material Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any unexpired waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company by any Tax authority is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. .
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing writing, formally or informally, by any tax Tax authority to the Company or any representative thereof.
(vvi) The Company had has no liability for any material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued for or reserved on the Closing Balance SheetCompany's balance sheet included in the audited financial statements for the most recent fiscal year ended, whether asserted or unasserted, contingent or otherwise, and which is material to the Company has not incurred Company, other than any liability for unpaid Taxes that may have accrued since the date end of the Closing Balance Sheet other than most recent fiscal year in connection with the operation of the business of the Company in the Ordinary Course ordinary course of Business.
(vi) The Company has made available business, none of which is material to Parent the business, results of operations or its legal counsel copies financial condition of all Tax Returns for the Company filed for all periods since December 31, 2002Company.
(vii) There 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 (a) never been a member not taken any action and does not know of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)any fact, (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does plan or other circumstance that is reasonably likely to prevent the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangement), Transaction from qualifying as a transferee or successor, by contract or agreement, or otherwise.
(ix) The Company is not and has not been, at any time, a "United States Real Property Holding Corporation" “reorganization” within the meaning of Section 897(c)(2368(a) of the Code.
(x) The Company has not constituted either a "distributing corporation" Code or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 “plan” within the meaning of Section 83 351 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madeCode.
Appears in 1 contract
Samples: Share Exchange Agreement (Medical Billing Assistance Inc)
Tax Returns and Audits. (i) The Company has as of the Effective Time will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to ------- the Company Company, or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has timely paid all Taxes owing and there is no Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the knowledge of the Company and the Principal Shareholders, no audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 20021994-96.
(vii) There 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 taxes not yet due and payable.
(viii) The Neither the Company nor any of the Principal Shareholders 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 the Company.
(aix) never been a member As of the Effective Time, except as contemplated by this Agreement, there will not be any contract, agreement, plan or arrangement, covering any employee or former employee of the Company that, individually or collectively, could reasonably be expected to give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under applicable law, including Section 280G of the Code.
(within x) Except for the meaning indemnification agreements identified on Section 2.14 of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)Disclosure Letter, (b) never been the Company is not a party to any tax sharing, tax indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company is not an accrual basis taxpayer, and the Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's tax books and records.
(xii) The Company is not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2ss.897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 [INTENTIONALLY OMITTED.]
(xiv) The Company Common Stock holds shares of Company Common Stock that are non-transferable and subject to a substantial risk of forfeiture has been an S Corporation within the meaning of Section 83 1361 of the Code with respect to which a valid election under Section 83(b) at all times since the date of the Code has not been madeits incorporation.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Failure Group Inc)
Tax Returns and Audits. (i) The Except as set forth in Section 2.11(b)(i) of the Disclosure Schedule, the Company has and each of its Subsidiaries have (A) prepared and timely filed (taking into account any extension of time within which to file) all material required U.S. federal, state, local and foreign non-U.S. Tax returns, estimates, information statements and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to be filed and such Returns in all material respects are true and correct and have been completed in accordance with applicable Law and (B) timely paid by the Company all material Taxes it is required to pay (whether or not shown on any Tax a Return) ), except for Taxes with respect to which adequate reserves for payment have been paidmade in accordance with GAAP as described in Section 2.11(b)(v).
(ii) The Except as set forth in Section 2.11(b)(ii) of the Disclosure Schedule, the Company has and each of its Subsidiaries have paid all Taxes required to be paid and has or withheld or paid with respect to its Employees their respective Employees, independent contractors, creditors, stockholders and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all U.S. federal, state and foreign non-U.S. income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution ActAct amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any withheld amounts to the appropriate authorities, other than any such amounts that, individually or paidin the aggregate, would be immaterial to the Company or the relevant Subsidiary.
(iii) No There is no material unpaid Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed in writing against the CompanyCompany or any of its Subsidiaries by any foreign, federal, state, or local taxing authority, nor has the Company or any of its Subsidiaries executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectmaterial Tax.
(iv) No Except as set forth in Section 2.11(b)(iv) of the Disclosure Schedule, no audit or other examination of any Return of the Company or any of its Subsidiaries 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 examinationexamination by any foreign, federal, state, or local taxing authority. No written 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 where it does not file Returns. No material adjustment relating to any Return filed by the Company or any of its Subsidiaries has been proposed in writing by any tax Tax authority to the Company or any of its Subsidiaries or any representative thereof. 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.
(v) The Company had no material liabilities for unpaid Taxes Except as set forth in Section 2.11(b)(v) of the Disclosure Schedule, as of the date of the Closing Current Balance Sheet Sheet, neither the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes which have had not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, Sheet in accordance with GAAP and neither the Company nor any of its Subsidiaries has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness. The unpaid Taxes of the Company and its Subsidiaries since the date of the Current Balance Sheet (A) do not, as of the most recent fiscal month end, exceed the reserve for all liabilities for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Current Balance Sheet and (B) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company and its Subsidiaries in filing their Returns, except with respect to clauses (A) and (B), for any liability for Taxes incurred in connection with any transaction contemplated by this Agreement.
(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, 2002.
(vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company is not and nor has not been, been at any time, a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(xvii) The Neither the Company nor any of its Subsidiaries has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xiviii) The Neither the Company nor any of its Subsidiaries has not engaged in a "reportable transaction," as set forth in Treas. Reg. § transaction under Treasury Regulation Section 1.6011-4(b) or ), including any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service IRS has determined to be a tax Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "listed transaction", as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xiiix) The Neither the Company nor any of its Subsidiaries (A) has ever been a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (B) is a party to any Tax sharing, indemnification or allocation agreement for which it would bear a liability for Taxes (other than any customary commercial or financing agreements entered into in the ordinary course of business the primary purpose of which is not Tax-related), nor does the Company or any of its Subsidiaries owe any amount under any such agreement, or (C) has any liability for the Taxes of any person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by contract, by operation of law or otherwise.
(x) Except as set forth in Section 2.11(b)(x) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income after the Closing as a result of (A) any change in method of accounting made, (B) closing agreement under Section 7121 of the CodeCode executed (or in the case of each of (A) and (B), under any similar provision of applicable Law), (C) installment sale or open transaction disposition consummated or (D) prepaid amount received, in each case, prior to the Closing.
(xi) Each of the Company and each of its Subsidiaries is in material 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 will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xii) Except as set forth in Section 2.11(b)(xii) of the Disclosure Schedule, 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 that country.
(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 Except as set forth in Section 83 of the Code with respect to which a valid election under Section 83(b2.11(b)(xiii) of the Code has not been madeDisclosure Schedule, 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. The prices for any property or services (or for the use of any property) provided by or to the Company or any of 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
Tax Returns and Audits. (i) The Company has Partnership as of the Closing Date will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") required to be filed by it relating to any and all Taxes concerning or attributable to imposed upon the Company or its operations. All Taxes required to Partners and such Returns shall be true and correct and shall have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has Partnership as of the Closing Date: (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees or independent contractors all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld, and (B) will have accrued on the Partnership Financials all Taxes imposed on the Partners and attributable to the periods covered by the Partnership Financials and will not have incurred any liability for Taxes for the period prior to the Closing Date other than in the ordinary course of business.
(iii) No The Partnership has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstandingoutstanding or assessed, assessed or, to the Knowledge knowledge of the CompanyCurrent Partners, proposed against the CompanyPartnership, nor has the Company Partnership executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectimposed upon the Partnership.
(iv) No audit or other examination of any Return of the Company Partnership is presently in progress, nor has the Company Partnership been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material Partnership does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Balance SheetPartnership Financials, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made Partnership will make available to Parent or its legal counsel upon request copies of all federal and state income (or income information) and all state sales and use Tax Returns for the Company filed Partnership for all periods since December 31, 2002the last three taxable years.
(vii) There are (and as of immediately following the Effective Time Closing Date 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 Partnership relating to or attributable to Taxes Taxes, other than Liens liens for Taxes personal property, sales and payroll taxes not yet due and payable.
(viii) The Company has (a) never been a member None of an affiliated group (the Partnership's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Internal Revenue Code §1504(aof 1986, as amended (the "Code").
(ix) filing The Partnership constitutes a consolidated federal partnership for federal, state and local income Tax Return tax purposes and for the purposes of the income tax laws of each state in which it is doing business.
(other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (bx) never been The Partnership is not a party to any a third-party tax sharing, indemnification sharing or allocation agreement, agreement with any third party nor does the Company Partnership owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company Partnership has not 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).
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement made an election under Section 7121 754 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has prepared Each of the Company, the Operating Subsidiary and filed all required federalany consolidated, statecombined, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning unitary or attributable to aggregate group for Tax purposes of which the Company or the Operating Subsidiary is or has been a member, (A) has properly completed and timely filed all Tax Returns required to be filed by it or on its operations. All behalf, and all such Tax Returns are true, correct and complete in all material respects, (B) has timely paid all Taxes required to have been be paid by the Company it for which payment was due (whether or not shown on any Tax ReturnReturns), (C) have been paidhas established an accrual or reserve in accordance with GAAP for the payment of all Taxes payable in respect of the periods or portions thereof prior to the Balance Sheet Date (which accrual or reserve as of the Balance Sheet Date is fully reflected on the face of the Company Balance Sheet, rather than in any notes thereto) and will establish an accrual or reserve in accordance with GAAP for the payment of all Taxes payable in respect of the periods or portion thereof through the Closing Date, (D) has made (or will make on a timely basis) all estimated Tax payments required to be made, (E) has no Liability for Taxes in excess of the amount so paid or accruals or reserves so established, and (F) since the Balance Sheet Date has not incurred any Liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice. The Company has provided Parent with correct and complete copies of all federal income and other material Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by the Company or the Operating Subsidiary filed or received for all taxable years remaining open under the applicable statute of limitations.
(ii) The Company has paid all Taxes required to be paid and has withheld No deficiencies for any Tax have been threatened, claimed, proposed or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalassessed, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paid.
(iii) No Tax deficiency is outstanding, assessed in writing or, to the Knowledge of the Company, proposed otherwise, against the Company, nor has the Operating Subsidiary or any of their officers, employees or agents in their capacity as such.
(iii) Neither the Company executed nor the Operating Subsidiary has received from the U.S. Internal Revenue Service (the “IRS”) or any waiver of other Governmental Authority (including any statute of limitations on sales or extension use Tax authority) any written or, to the Knowledge of the period Company, other (i) notice indicating an intent to open an audit or other review, (ii) request for information related to Tax matters, or (iii) notice of deficiency or proposed adjustment of or any amount of Tax proposed, asserted, or assessed by any Governmental Authority against the assessment Company or collection the Operating Xxxxxxxxxx.Xx Tax Return of the Company or the Operating 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 the applicable Governmental Authority conducting such audit and all Taxes determined by such audit to be due from the Company or the Operating Subsidiary have been paid in full to the applicable Governmental Authorities or reserves in accordance with GAAP therefor have been established and are reflected on the face of the Company Balance Sheet (rather than in any notes thereto).No claim has ever been made by a Governmental Authority in a jurisdiction where the Company or the Operating Subsidiary does not file Tax with continuing effectReturns that it is or may be subject to Tax by that jurisdiction.
(iv) No audit or other examination Tax liens are currently in effect against any of any Return the assets of the Company or the Operating Subsidiary other than liens that arise by operation of law for Taxes not yet due and payable. There is presently not in progress, effect any waiver by the Company or the Operating Subsidiary of any statute of limitations with respect to any Taxes nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating the Operating Subsidiary agreed to any extension of time for filing any Tax Return filed by that has not been filed.Neither the Company nor the Operating Subsidiary has been proposed consented to extend to a date later than the Closing Date the period in writing which any Tax may be assessed or collected by any tax authority to the Company Tax agency or any representative thereofauthority.
(v) The Company had no material liabilities for unpaid Taxes has received, from each employee or former employee of the Company who holds stock that is subject to a substantial risk of forfeiture as of the date hereof, a copy of the Closing Balance Sheet which have not been accrued or reserved on election(s) made under Section 83(b) of the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwiseCode with respect to all such shares, and such elections were validly made and filed with the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than IRS in the Ordinary Course of Businessa timely fashion.
(vi) The Company has made available to Parent or its legal counsel copies of all Tax Returns for Neither the Company filed nor the Operating Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for all periods since December 31, 2002.
any Tax period (viior portion thereof) There are ending after the Closing Date as a result of: (and immediately following A) the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests application of Section 481 or other encumbrances of any sort (collectively, "Liens") on the assets Section 263A of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any corresponding or similar provisions of state, local or foreign Tax laws) to transactions, events or accounting methods employed prior to the Closing, (B) any “closing agreement,” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax law) executed on or prior to the Closing Date, including (C) any arrangement for group Tax relief within a jurisdiction “intercompany transaction” or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise.
any “excess loss account” (ix) 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)(2Treasury Regulations Sections 1.1502-13 and 1502-19, respectively) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any corresponding or similar provisions of state, local or foreign Tax law), (D) any installment sale, open transaction that is or other transaction made on or prior to 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, regulationClosing Date, or other form of published guidance as a "listed transaction", as set forth in Treas. Reg. § 1.6011-4(b)(2)(E) any prepaid amount received on or prior to the Closing Date.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the -------- Company or its operations. All Taxes required to , and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) is no liensmortgage, pledges, charges, claims, restrictions on transfer, mortgagespledge, security interests interest or lien or other encumbrances encumbrance (each a "Lien") of any sort (collectively, "Liens") on the assets of the Company the ---- relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Principal Shareholders have 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 any material assets of the Company.
(ix) As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company has that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an expense under Sections 162, 280G or 404 of the Code. (ax) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company 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 concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has timely paid all Taxes it is required to be paid pay and has withheld or paid with respect to its Employees and other third parties employees (and paid over any withheld amounts timely remitted to the appropriate Taxing authoritytaxing authorities) all federal, federal and state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, outstanding or assessed or, to the Knowledge of the Company's Knowledge, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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 Neither the Company nor the Principal Shareholders 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 the Company.
(aix) never been a member None of an affiliated group (the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxi) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiii) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Knowledge of the Company, informally by any tax authority to the Company or any representative thereof.
(xiv) 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), (b) no liability for the Taxes of any person (other than Company or any of its Subsidiaries) 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 and (c) never been a party to any joint venture, partnership or, to the Company's Knowledge, other agreement that could be treated as a partnership for Tax purposes.
(xv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) 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 distribution which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
Series of related transactions" (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lantronix Inc)
Tax Returns and Audits. Except as set forth in Schedule 3.22, as of the Effective Date of this Agreement AWW has, and as of the Closing Date AWW will have: (ia) The Company has prepared and filed in accordance with applicable laws all required federal, state, and local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid by the Company (whether or not shown on any Tax Return) have been paid.
(ii) The Company has paid all Taxes tax returns required to be filed by it; (b) paid all taxes, assessments, penalties, and has withheld interest charges shown to be due and payable on each such return or paid with respect otherwise due or to its Employees and 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, Federal Unemployment Tax Act and other Taxes become due or required to be withheld paid; and (c) accrued or paid.
(iii) No Tax deficiency is outstandingcreated reserves for all taxes due or to become due by it for all periods ending before, assessed oron or with the Effective Date. The federal income tax liability of AWW has not been examined by the Internal Revenue Service during the six-year period ending on December 31, to the Knowledge of the Company, proposed against the Company1996, nor has there been an examination of any other tax liability of AWW during the Company past six (6) years. Except as set forth in Schedule 3.22, AWW has not been delinquent in the payment of any tax, assessment or governmental charge, nor has any tax deficiency been proposed or assessed against it which has not been satisfied, except for the delinquent payment of past property taxes, payment of which has been made in full. AWW has not executed any waiver of any the statute of limitations on or extension of the period for the assessment or collection of any Tax with continuing effect.
(iv) No audit or other examination of any Return tax. Copies of the Company is presently in progress, nor has the Company been notified in writing federal and state income tax returns of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwiseAWW, and all adjustments and amendments to such returns, for the Company has not incurred any liability for Taxes 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 three years ended December 31, 1996, together with copies of all Tax Returns for the Company filed for all periods since December 31reports, 2002.
(vii) There are (and immediately following the Effective Time there will be) no liensas filed, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of the Company taxing authority relating to examinations thereof, have been previously delivered to Liquids, and to the best of each Guarantor's knowledge, are accurate and complete. AWW has withheld or attributable otherwise collected all taxes or amounts it is required to Taxes withhold or collect under any applicable federal, state, or local law, including, without limitation, any amounts required to be withheld or collected with respect to social security, unemployment compensation, sales or use taxes or workers' compensation, and all such amounts have been timely remitted to the proper authorities. For purposes of this Section 3.22, the term "tax" or "taxes" shall include, but not be limited to, income taxes, employment taxes, excise taxes, sales and use taxes, franchise taxes, and any other than Liens for Taxes tax that may be imposed by a taxing authority. AWW is not yet due and payable.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax sharing, indemnification allocation or allocation agreement, nor does the Company owe any amount sharing agreement or otherwise under any such agreement, obligation to indemnify any person with respect to taxes. There are no accounting method changes or (c) proposed account method changes of AWW that could give rise to an adjustment under Section 481 of the Code for any period after the Closing. There are no liability requests for the Taxes rulings in respect of any person (other than Company) under Treastax pending between AWW and any tax authority. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company AWW is not and has not beena party to any joint venture, at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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, regulationpartnership, or other form of published guidance arrangement that is treated as a "listed transaction", as set forth in Treas. Reg. § 1.6011-4(b)(2)partnership for federal income tax purposes.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Merger Agreement (U S Liquids Inc)
Tax Returns and Audits. (i) The Company has and each of its Subsidiaries have (a) prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or any of its operations. All Subsidiaries or their respective operations and such Returns are true and correct and have been completed in accordance with applicable law and (b) timely paid all Taxes they are required to have been paid by pay or established adequate reserves on the Company (whether or not shown on any Tax Return) have been paidCurrent Balance Sheet for such Taxes.
(ii) The Company has paid all Taxes required to be paid and has each of its Subsidiaries have withheld or paid with respect to its their respective Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all federal, state and foreign income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidwithheld, and have timely paid all such Taxes to the appropriate authorities.
(iii) No Neither the Company nor any of its Subsidiaries has been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company or any of its Subsidiaries 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. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, neither the Company nor any of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available provided to Parent or its legal counsel counsel, copies of all Tax Returns for the Company and its Subsidiaries filed for all periods since December 31, 2002the previous four taxable years.
(vii) There 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") Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes other than Liens Permitted Liens. Neither the Company nor any of its Subsidiaries has Knowledge of any basis for the assertion of any claim relating or attributable to Taxes not yet due and payablewhich, if adversely determined, would result in any Lien (other than Permitted Liens) on the assets of the Company or any of its Subsidiaries.
(viii) The None of the Company’s or any of its Subsidiaries’ assets is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) Neither the Company nor any of its Subsidiaries has (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never ever been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no any liability for the Taxes of any person (other than Company) Company or any of its Subsidiaries), under Treas. Reg. § Treasury Regulation §1.1502-6 (or any similar provision of state, 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 otherwiseotherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ixx) The Company’s and each of its Subsidiaries’ tax basis in their respective assets for purposes of determining its future amortization, depreciation and other income Tax deductions is accurately reflected on the Company’s and its Subsidiaries’ Tax books and records.
(xi) Neither the Company is not and nor any of its Subsidiaries has not been, at any time, a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(xxii) The No adjustment relating to any Return filed by the Company or any of its Subsidiaries has not been proposed formally or, to the Knowledge of the Company, informally by any Tax authority to the Company or any of its Subsidiaries or any representative thereof.
(xiii) Neither the Company nor any of its Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xixiv) The None of the Company or any of its Subsidiaries has not 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 Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "“listed transaction", ,” as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xiixv) The Company is and has at all times been resident for Tax purposes in its place of incorporation or formation and is not and has not at any time been treated as resident in any other jurisdiction for any Tax purpose (including any income tax treaty). The Company is not subject to Tax in any jurisdiction other than its place of incorporation or formation by virtue of having a branch, permanent establishment or other place of business or by virtue of having a source of income in that jurisdiction, except for royalty income for which any income Tax is satisfied through withholding. The Company is not liable for any Tax as the agent of any other person or business and does not constitute a permanent establishment or other place of business of any other person, business or enterprise for any Tax purpose.
(xvi) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable taxable income for any taxable year after the Closing Date as a result of (a) any change in method of accounting under Section 481(c) of the Code, closing agreement under Section 7121 of the Code, deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or in each case, under any similar provision of applicable law), (b) installment sale or open transaction disposition or (c) prepaid amount.
(xiiixvii) No holder relief (including by way of deduction, reduction, set-off, exemption or otherwise) from, against or in respect of any Tax or charge has been claimed by or given to the Company Common Stock holds shares or any of its Subsidiaries which could be withdrawn, postponed, restricted or otherwise lost as a result of any act, omission, event or circumstance arising or occurring at any time before the date hereof or as a result of entering into this Agreement.
(xviii) No power of attorney (or similar authority) relating to Tax matters, Tax audits or Returns has been granted with respect to the Company Common Stock or any of its Subsidiaries.
(xix) The prices for any property or services (or for use of any property) charged by or to the Company or any of its Subsidiaries are arm’s length prices for purposes of any applicable transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Code.
(xx) No claim has been made by any governmental entity in any jurisdiction where the Company or any of its Subsidiaries does not file Returns that are non-transferable and the Company or any such Subsidiary may be subject to a substantial risk taxation by that jurisdiction.
(xxi) The Company and each of forfeiture within its Subsidiaries have complied in all respects with all applicable laws relating to the meaning withholding and payment of Section 83 Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 3121 and 3402 of the Code with respect or any comparable provision of any state, local or foreign laws) and have, within the time and in the manner prescribed by applicable law, withheld from and paid over to which a valid election the proper taxing authorities all amounts required to be so withheld and paid over under Section 83(b) of the Code has not been madesuch laws.
Appears in 1 contract
Samples: Merger Agreement (Harmonic Inc)
Tax Returns and Audits. (i) The Except as indicated on Schedule 4.10(b), the Company has as of the date hereof have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") required to be filed prior to the date hereof relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to Company, and such Returns are true and correct, and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted, in all material respects, in accordance with applicable law.
(ii) The Except as indicated on Schedule 4.10(b), as of the date hereof, the Company has paid all the aggregate amount of Taxes it is required to be paid pay concerning or attributable to the Company or its business and has withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld.
(iii) No Except as indicated on Schedule 4.10(b), the Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstandingdeficiency, assessed or, to the Knowledge of the Company, or proposed against the Company, nor . The Company has the Company not executed any waiver of any statute of limitations on on, or extension of any waiver extending the period for for, the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of incurred prior to the date of the Closing Current Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(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, 2002.
(vii) There 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 Liens relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(vii) There is, to the knowledge of the Company, no basis for the assertion of any claim for Taxes that, if adversely determined, would result in any Lien on the assets of the Company.
(viii) The Company has (a) never been a member Except as indicated on Schedule 4.10(b), none of an affiliated group (the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Internal Revenue Code §1504(aof 1986, as amended (the "Code").
(ix) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was CompanyExcept as indicated on Schedule 4.10(b), the Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (bf) never been asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(x) The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xii) The Company is not currently, and has not been, never at any timetime been, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 adjustment relating to any Return filed by the Company has been proposed formally or informally by any tax authority to the Company or any 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madeits representative.
Appears in 1 contract
Samples: Stock Acquisition and Exchange Agreement (Pinnacle Systems Inc)
Tax Returns and Audits. Except as set forth in SCHEDULE 2.8:
(i) The Company has as of the Closing, except for the fiscal year ending July 31, 2000, will have prepared and filed all required provincial, federal, state, local and foreign returns, estimates, declarations, information statements and reports ("ReturnsRETURNS") required to be filed before the Closing with any governmental or taxing authority relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has Company, as of the Closing: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld from each payment made to its past or present employees, officers, directors and independent contractors, creditors, stockholders or other third parties all Taxes and other material deductions required to be withheld and have, within the time required by law, paid and has withheld or paid with respect to its Employees and other third parties (and paid over any such 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, Federal Unemployment Tax Act and other Taxes required to be withheld or paidproper governmental authorities.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension extensions of the period for the assessment or collection of any Tax with continuing effectTax. There are no matters relating to Taxes under discussion between any Governmental Authority and the Company or any subsidiary.
(iv) No audit or other examination of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating , nor is any taxing authority asserting, or to any Return filed by Company's knowledge, threatening to assert against the Company has been proposed in writing by any tax authority to the Company or any representative thereofclaim for Taxes.
(v) The Company had has no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet hereof for unpaid Taxes which have not been accrued or reserved against in accordance with Canadian GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has no knowledge of any basis for the assertion of any such liability attributable to the Company, its assets or operations. Since February 29, 2000, the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available provided to Parent or its legal counsel and Buyer copies of all federal, provincial and state income, all goods and services and all provincial and state sales and use Tax Returns for the Company filed for all periods since December 31, 2002that have been requested by Parent and Buyer.
(vii) The Company has remitted to the appropriate tax authority when required by law to do so all amounts collected by it on account of Taxes under Part IX of the EXCISE TAX ACT (Canada) and any similar provincial legislation and in respect of retail sales tax.
(viii) There are (and as of immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes other than except for Liens for Taxes not yet due and payable.
(viiiix) 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.
(ax) never been As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the U.S. Internal Revenue Code of 1986, as amended (the "CODE").
(xi) The Company has filed no 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 member subsection (f) asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by the Company.
(within the meaning of Code §1504(a)xii) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreementagreement and is not liable for the Taxes of any other person, whether as a transferee or successor or by contract or otherwise, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal and provincial income tax deductions is accurately reflected on Company's tax books and records and Tax Returns.
(xiv) The Company is not and has not been, at any time, participated in or cooperated with a "United States Real Property Holding Corporation" within the meaning of boycott under Section 897(c)(2) 999 of the Code.
(xxv) No power of attorney has been granted by the Company with respect to any matter relating to Taxes.
(xvi) The Company has not constituted either requested or received a "distributing corporation" ruling from any taxing authority or entered into a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Codesettlement or compromise with any taxing authority.
(xixvii) To Company's knowledge, no circumstances exist which would make the Company or any subsidiary subject to the application of any of sections 79 to 80.04 of the INCOME TAX ACT (Canada) or a similar provision under a provincial taxing statute. The Company has not acquired property or services from or disposed of property or provided services to, a person with whom it does not deal at arm's length (within the meaning of the INCOME TAX ACT (Canada) and the equivalent provisions of the Quebec Taxation Act) 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 INCOME TAX ACT (Canada) and the equivalent provisions of the Quebec Taxation Act.
(xviii) The Company has not engaged deducted any material amounts in computing its income in a "reportable transaction," as set forth taxation year which may be included in Treas. Reg. § 1.6011-4(ba subsequent taxation year under Section 78 of the INCOME TAX ACT (Canada) or any transaction that is the same as or substantially a similar to one of the types of transactions that the Internal Revenue Service has determined to be provision under 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)provincial taxing statute.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the --------- Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectimposed upon the Company.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Businessperiods prior to May 31, 1997.
(vi) The Company has made available to Parent or its legal counsel copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) is no liensmortgage, pledges, charges, claims, restrictions on transfer, mortgagespledge, security interests interest or lien or other encumbrances encumbrance (each a "Lien") of any sort (collectively, "Liens") on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has Shareholders have 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 any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company Each of the Acquired Companies has prepared and timely filed all material required federal, state, local and foreign returns, estimates, information statements and reports ("“Returns"”) for which the deadline (including extensions) has passed relating to any and all Taxes concerning or attributable to the Company Acquired Companies or its operations. All Taxes required to their respective operations and such Returns are true and correct in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law in all material respects.
(ii) The Company Each of the Acquired Companies has (A) timely paid all material Taxes it is required to be pay and (B) timely paid and has or withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts over to the appropriate Taxing authority) all federal, federal and state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld paid or paidwithheld.
(iii) No None of the Acquired Companies has been delinquent in the payment of any Tax, nor is there any material Tax deficiency is outstanding, assessed or, to the Knowledge or proposed against any of the Company, proposed against the CompanyAcquired Companies, nor has any of the Company Acquired Companies executed any waiver of any statute of limitations on or extension of extended the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of any of the Acquired Companies is, to the Knowledge of those Employees of the Company is responsible for Tax matters of the Company, presently in progress, nor and none of the Acquired Companies has the Company been notified in writing or, to the Knowledge of those Employees of the Company responsible for Tax matters of the Company, informally, of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company As of the Balance Sheet Date, none of the Acquired Companies had no any material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have were not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and and, to the Knowledge of those Employees of the Company responsible for Tax matters of the Company, none of the Acquired Companies has not incurred any liability for Taxes since the that date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company Each of the Acquired Companies has made available to Parent or its legal counsel counsel, copies of all Tax Returns for the Company Acquired Companies filed for all periods since December 31, 2002its inception.
(vii) There 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") Liens on the assets of any of the Company Acquired Companies relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. To the Knowledge of those Employees of the Company responsible for Tax matters of the Company, there is no basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien for Taxes on the assets of any of the Acquired Companies.
(viii) The None of the assets of any of the Acquired Companies is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) None of the Acquired Companies 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 such Acquired Company.
(x) None of the Acquired Companies 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.
(xi) No adjustment relating to any Return filed by any of the Acquired Companies has been proposed in writing or, to the Knowledge of those Employees of the Company responsible for Tax matters of the Company, informally by any tax authority to any of the Acquired Companies or any representative thereof.
(xii) None of the Acquired Companies has (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was the Company), (b) never ever been a party to any tax Tax sharing, indemnification or allocation agreement, nor does any of the Company Acquired Companies owe any amount under any such agreement, or (c) no any liability for the Taxes of any person Person (other than Companythe Acquired Companies) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 agreementcontract, or otherwiseotherwise and (d) ever been a party to any joint venture, partnership or other agreement that, to the Knowledge of those Employees of the Company responsible for Tax matters of the Company, could be treated as a partnership for Tax purposes.
(ixxiii) 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) None of the Code.
(x) The Company Acquired Companies has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) distribution which could otherwise constitute part of a “plan” or any transaction that is the same as or substantially similar to one “series 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).
related transactions” (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Tellabs Inc)
Tax Returns and Audits. (i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign income tax and other returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or ------- attributable to the Company or its operations. All Taxes required to have been paid by the Company , and such Returns are (whether or not shown on any Tax Returnor, if filed hereafter, will be) have been paidtrue and correct in all material respects.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) is no liensmortgage, pledges, charges, claims, restrictions on transfer, mortgagespledge, security interests interest or lien or other encumbrances encumbrance (each a "Lien") of any sort (collectively, "Liens") on the assets of the Company the ---- relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has and the Company Shareholders have 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 any material assets of the Company.
(aix) never been a member There is not currently and as of the Closing Date, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Each of the Company and its Subsidiaries has prepared and timely filed or caused to be prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("“Returns"”) for which the period for timely filing has expired relating to any and all Taxes concerning or attributable to the Company Company, any of its Subsidiaries or its operations. All Taxes required to their respective operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Each of the Company and its Subsidiaries: (A) has paid all Taxes it is required to be paid pay and (B) has withheld or paid with respect to its Employees and other third parties employees (and timely 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, Federal Unemployment Tax Act (“FICA”) and other Taxes required to be withheld or paidwithheld.
(iiiA) No Neither the Company nor its Subsidiaries has been delinquent in the payment of any Tax, (B) nor is there any Tax deficiency is outstanding, outstanding or assessed or, to the Knowledge of the Company, proposed against the CompanyCompany or any of its Subsidiaries, and (C) nor has the Company or any of its Subsidiaries executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company or its Subsidiaries is presently currently 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. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, neither the Company nor any of its Subsidiaries had any liabilities for unpaid federal, state, local or foreign Taxes which have were not been accrued or reserved against on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available provided to Parent or its legal counsel copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company and its Subsidiaries filed for all periods since December 31, 2002its inception.
(vii) There 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 or its Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Neither the Company nor any of its Subsidiaries has any 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 its Subsidiaries.
(ix) None of the Company’s or its Subsidiaries’ assets is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(x) 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)(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 its Subsidiaries.
(xi) Neither the Company nor any of its Subsidiaries has (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was the Company), (b) never ever been a party to any tax Tax sharing, indemnification or allocation agreementagreement other than an Intra-Group Agreement, nor does the Company owe any amount under any such agreement, or (c) no any liability for the Taxes of any person (other than CompanyCompany or its Subsidiaries) under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, 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 otherwiseotherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes. Except as set forth in Section 2.10 of the Disclosure Schedule, there are no written Intra-Group Agreements.
(ixxii) The Neither the Company is not and nor any of its Subsidiaries has not been, at any time, a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(xxiii) The No adjustment relating to any Return filed by the Company or any of its Subsidiaries has not been proposed formally or, to the Knowledge of the Company, informally by any Taxing authority to the Company or its Subsidiaries or any representative thereof.
(xiv) Neither the Company nor its Subsidiaries has constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two (2) years prior to the date of this Agreement or (y) in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) distribution which could otherwise constitute part of a “plan” or any transaction that is the same as or substantially similar to one “series 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).
related transactions” (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. (i) The As of the Effective Time, each of the Company has will have prepared and 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 operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Effective Time, each of the Company has (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidand have timely paid over to the proper governmental authorities all amounts required to be withheld and paid over under all applicable laws, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods 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) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, Company nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) Neither the Company nor the Principal Shareholders 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 the Company.
(ix) None of the Company's assets are treated as "tax-exempt use property", within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible as an expense under applicable law.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (af) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xii) The Company (A) has 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES consolidated group the common parent of which was is the Company), (bB) has never been a party to any tax sharing, indemnification Tax sharing or Tax allocation agreement, nor arrangement or understanding and does the Company not owe any amount under any such agreement, or other than this Agreement, (cC) no liability is not liable for the Taxes of any other person (other than Company) under Treas. Reg. § Treasury Regulation Section 1.1502-6 (or any similar provision of state, 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 agreementotherwise, and (D) has never been a party to any joint venture, partnership or otherwiseother arrangement that could be treated as a partnership for income Tax purposes.
(ixxiii) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's tax books and records.
(xiv) The Company is not and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxv) No adjustment relating to any Return filed by the Company and no claim by a tax authority in a jurisdiction in which the Company does not file returns that the Company may be subject to taxation by such jurisdiction has been proposed formally or, to the knowledge of the Company or the Principal Shareholders, informally by any tax authority to the Company or any representative thereof.
(xvi) The Company has not never constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xiA) The Company has not engaged in the two years prior to the date of this Agreement or (B) 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 distribution which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
series of related transactions" (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Intraware Inc)
Tax Returns and Audits. Except as described in Section 3.13 of the Disclosure Schedules:
(i1) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements Tax Returns and reports ("Returns") relating to any and all Taxes Tax estimates concerning or attributable to the Company itself or its operations. All Taxes required , except where the failure to file such Tax Returns and Tax estimates will not have a Material Adverse Effect, and such Tax Returns and estimates are true and correct in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable Law.
(ii2) The Company (A) has timely paid all Taxes it is required to be paid pay and has withheld or paid and properly remitted with respect to its Employees and other third parties employees (and timely paid over any withheld amounts to the appropriate Taxing authority) all federal, federal and state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes of any kind or nature required to be withheld or paidwithheld, and (B) has accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Closing Date, other than in the Ordinary Course of Business.
(iii3) No The Company has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency is or adjustment outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has and the Company has not executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv4) No audit or other examination of any Tax Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi5) The Company has made available to Parent or Parent, its legal counsel and its accountants, copies of all Tax Returns for filed by the Company filed for all periods since December 31, 2002its inception.
(vii6) There are (and immediately following the Effective Time Closing Date there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Encumbrances on the assets of the Company relating to or attributable to Taxes other than Liens Encumbrances for Taxes not yet due and payable.
(viii7) The Company has no Actual Knowledge of any basis for the assertion of any claim for Taxes, which, if adversely determined, would result in any Encumbrance on the assets of the Company.
(8) The Company has (a) never been a member of an affiliated group (within the meaning of Code §Section 1504(a)) filing a consolidated federal income Tax Return tax return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was the Company), (b) never been a party to any tax Tax sharing, indemnification or allocation agreementContract, nor does the Company owe and never owed any amount under any such agreementContract, or (c) no liability for the Taxes of any person (other than Company) Person under Treas. Reg.
Section 1. § 1.15021502-6 (or any similar provision of state, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee W02-SD:6AFP1\51393538 -21- Agreement and Plan of Merger 09EY-117690 PAGE or successor, by contract or agreementContract, or otherwise, and (d) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(ix) 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.
(x9) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xi10) The Company has not 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. § Section 1.6011-4(b)(2).
(xii11) The Company will has not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result disposed of any closing agreement property in a transaction being accounted for under the installment method pursuant to Section 7121 453 of the Code.
(xiii12) The Company (i) has not agreed nor is required to make any adjustment pursuant to Section 481 of the Code by reason of a change in accounting methods or otherwise, (ii) has no Actual Knowledge that any taxing authority has proposed any such adjustment or change, which proposal is currently pending, and (iii) does not have an application pending with any taxing authority requesting permission for any change in accounting methods that relate to its business and operations.
(13) No holder power of attorney has been granted by the Company Common Stock holds shares with respect to any matter relating to Taxes, which power of attorney is currently in force.
(14) The Company Common Stock that are non-transferable and subject to has no direct or indirect beneficial ownership interest in (i) a substantial risk "passive foreign investment company", (ii) a "foreign sales corporation", or (iii) a person other than a United States person, each within the meaning of forfeiture the Code.
(15) The Company does not own "corporate acquisition indebtedness" within the meaning of Section 83 279 of the Code with respect to which a valid election under Section 83(bCode.
(16) No property of the Code has not been madeCompany is "tax-exempt use property" within the meaning of Section 168 of the Code.
Appears in 1 contract
Samples: Merger Agreement (Spacedev Inc)
Tax Returns and Audits. (i) The Seller and the Company each has prepared and timely filed (or has properly filed the extensions for) all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company it, its subsidiaries or its operations. All Taxes required to operations thereof, and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company (A) has paid all Taxes it is required to be paid pay as shown on the filed returns and has withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, and (B) has accrued on the Company Financial Statements all Taxes attributable to the periods covered by the Company Financial Statements and has not incurred any liability for Taxes for the period prior to the Closing Date other than in the ordinary course of business. The Seller has paid all Taxes it is required to pay as shown on the filed returns and has withheld or paidwith respect to its employees all federal and state income taxes, FICA, FUTA and other Taxes required to be withheld.
(iii) No Neither the Seller nor the Company has been delinquent in the payment of any Tax and there is no Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against it by the CompanyInternal Revenue Service (the "IRS") or any other governmental taxing authority, nor and it has the Company not executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Seller or the Company is presently in progress, and neither the Seller nor has the Company has been notified in writing of any request for such an audit or other examination. .
(v) No adjustment relating to any Return Returns filed by the Seller or the Company has been proposed in writing formally or informally by any tax Tax authority to the Seller, the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Businesstheir respective representatives.
(vi) The Seller and the Company each has made available to Parent the Buyer or its legal counsel counsel, copies of all Tax federal and state income and all state sales and use Returns for the Company it filed for all periods since December 31, 2002the past three (3) years.
(vii) There are (and immediately following the Effective Time Closing Date there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Liens on the assets of the Seller or the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company No Shareholder has any 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 Seller or the Company.
(aix) never been a member None of an affiliated group (the Seller's nor 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, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Seller or the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Seller or the Company, as applicable, as an expense under applicable law.
(xi) Neither the Seller nor the Company has filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Company), Code) owned by it.
(bxii) never been Neither the Seller nor the Company is a party to any tax sharing, indemnification or allocation agreement, agreement and neither the Seller nor does the Company owe owes any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Accupoll Holding Corp)
Tax Returns and Audits. (i) The Company 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 concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company (A) has timely paid all Taxes it is required to be paid pay and has withheld or paid with respect to its Employees and other third parties employees (and timely paid over any withheld amounts to the appropriate Taxing authority) all federal, federal and state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidwithheld, and (B) has accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is or adjustment outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made or will make available to Parent or Parent, its legal counsel and its accountants, copies of all Tax Returns for the Company filed for all periods since December 31, 2002its inception.
(viivi) There 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.
(vii) None of the Company, the Stockholders or the Principal has Knowledge of any basis for the assertion of any claim for Taxes, which, if adversely determined, would result in any Lien on the assets of the Company.
(viii) The Company has (a) never been a member of an affiliated group (within the meaning of Code §Section 1504(a)) filing a consolidated federal income Tax Return return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treassuch
Section 1. Reg. § 1.15021502-6 (or any similar provision of state, 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 agreementcontract, or otherwiseotherwise and (d) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(ix) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xix) The Company has not 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. § Section 1.6011-4(b)(2).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Merger Agreement (Xicor Inc)
Tax Returns and Audits. (i) The Company has as of the Closing will have prepared and 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 , and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing: (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld, and (B) will have accrued on the Most Recent Balance Sheet all Taxes attributable to the periods covered by the Most Recent Balance Sheet and will not have incurred any liability for Taxes for the period prior to the Closing other than in the ordinary course of business.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Most Recent Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Most Recent Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent the Purchaser or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There are (and immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Neither the Company nor the Shareholder 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 the Company.
(aix) never been a member None of an affiliated group (the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxi) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxii) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) No adjustment relating to any Return filed by the Company has been proposed formally or informally by any tax authority to the Company or any representative thereof.
(xv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of files its income Tax Returns on the Codeaccrual basis.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.8:
(i) The Company has as of the Effective Time will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("ReturnsRETURNS") ), to the extent such Returns have become due, relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees all employees, independent contractors and other third parties (persons all federal and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax in the last five (5) years nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided Parent access to Parent or its legal counsel copies of all Tax Returns for the Company filed for all periods since December 31, 2002the date of Company's incorporation. Schedule 2.8 lists any such Tax Returns that have been audited in the last five (5) years.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company has (a) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(ix) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bx) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxii) The Neither the Company nor any of its subsidiaries has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xiA) The Company has not engaged in the two years prior to the date of this Agreement or (B) 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 distribution which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
series of related transactions" (xiiwithin the meaning of Section 355(e) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Code) in conjunction with the Merger.
(xiii) No holder of The Company Common Stock holds shares of Company Common Stock that are non-transferable has been an S Corporation for federal and, to the extent S Corporation status is recognized, state, local and subject to a substantial risk of forfeiture foreign tax purposes within the meaning of Section 83 1361 of the Code with respect to which a valid election under Section 83(b(and state, local and foreign counterparts of that section) of the Code has not been madesince July 1, 1987.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns"“RETURNS”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid be filed by the Company (whether or Company, except such Returns which are not material to the Company, and have paid all Taxes shown to be due on any Tax Return) have been paidsuch Returns. All such Returns are true, correct and complete in all material respects.
(ii) The Company has as of the Effective Time will have withheld and paid all Taxes required to be paid and has withheld or paid over, as appropriate, with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts state, local and/or foreign income taxes, Taxes pursuant to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution ActAct (“FICA”), Taxes pursuant to the Federal Unemployment Tax Act (“FUTA”) and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. The Company has not received a request for or an inquiry regarding a Return from any jurisdiction where it does not currently file a Return.
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereofthereof and, to the knowledge of the Company, no basis exists for any such adjustment which would be material to the Company.
(vvi) The Company had no material liabilities does not have any liability for unpaid Taxes as of the date of the Closing Balance Sheet which have has not been accrued for or reserved on the Closing Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, and the Company has not incurred any liability for Taxes other than in the ordinary course of business since the date of the Closing Company 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 Sheet. There is no lien for the Company filed for all periods since December 31, 2002.
(vii) There 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") Taxes on the assets of the Company relating to or attributable to Taxes other than Liens inchoate liens for Taxes not yet due and payabledue.
(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) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)There is no contract, (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company owe that, individually or collectively, could give rise to the payment of any amount under any such agreementthat would not be deductible pursuant to Sections 162, 280G or (c) no liability for 404 of the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwiseCode.
(ix) 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.
(x) The Company is not not, and has not been, been at any time, a "“United States Real Property Holding Corporation" real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes payable by 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)Company.
(xii) The Company will not be required has never been a member of a consolidated, combined or affiliated group or is a party to include or affected by any material income tax-sharing or material gain allocation agreement or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codearrangement.
(xiii) No holder The Company has no (A) any Tax exemption, Tax holiday or other Tax-sparing arrangement that the Company has in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or other Tax-sparing arrangement and (B) any expatriate tax programs or policies affecting the Company. The Company Common Stock holds shares is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax-sparing arrangement or order of any Governmental Entity and the consummation of the transactions contemplated hereby will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sparing arrangement or order.
(xiv) The Company Common Stock that are non-transferable and is not a party to or otherwise subject to any arrangement entered into in anticipation of the Closing, not in accordance with past practice and not required by this Agreement, that could reasonably be expected to have the effect of (i) the recognition of a substantial risk deduction or loss before the Closing Date and a corresponding recognition of forfeiture within taxable income or gain by the meaning Company after the Closing Date or (ii) the recognition of taxable income or gain by the Company after the Closing Date without the receipt of or entitlement to a corresponding amount of cash.
(xv) No closing agreement, written ruling, or determination letter with respect to Taxes, or any equivalent written decision from a foreign jurisdiction, has been received from, and no closing or other similar agreement has been executed with, any Tax or other governmental authority that will be binding upon the Company after the Closing.
(xvi) The Company has properly withheld on all amounts paid to Persons located or incorporated outside of the United States and have paid the appropriate amounts withheld to the proper governmental authorities.
(xvii) The Company has not been a party to a transaction intended to qualify under Section 83 355 of the Code with respect to which a valid election under Section 83(b(whether as distributing or distributed company) of within the Code has not been madelast five years.
Appears in 1 contract
Samples: Merger Agreement (Soefl Inc.)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all required material U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports required to be filed ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All operations and such Returns are true and correct in all material respects and have been completed in accordance with applicable Law and (b) timely paid all material Taxes it is required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company has paid all Taxes required to be paid and has or withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all U.S. federal, state and foreign non-U.S. income taxes and social security charges and similar fees, Federal Insurance Contribution ActAct amounts, Federal Unemployment Tax Act amounts and other Taxes required to be withheld, and has timely paid over any such withheld or paidTaxes to the appropriate authorities.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax Tax authority to the Company or any representative thereof. No claim has ever been made in writing 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.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, the Company had no liabilities for unpaid Taxes which have had not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness, consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax Returns for the Company filed for all periods since December 31January 1, 20022006.
(vii) There 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") Liens on the tangible or intangible assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable. 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.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was the Company), (b) never been a party to any tax Tax sharing, indemnification indemnification, allocation or allocation similar agreement, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) Person under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, non-U.S. Law (including any arrangement for group Tax or consortium relief within a jurisdiction or similar arrangement)), as a transferee or successor, by operation of law, by contract or agreement, or otherwiseotherwise 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) 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.
(x) The Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in transaction under Treas. Reg. § 1.6011-4(b) or any ), including 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 Treas. Reg. § 1.6011-4(b)(2).
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income for any taxable period or portion thereof after the Closing Date as a result of any (a) change in method of accounting made on or prior to the Closing Date, (b) closing agreement under Section 7121 of the CodeCode 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 Closing.
(xiii) No holder The Company uses the accrual method of accounting for tax purposes.
(xiv) Except as set forth in Section 2.11 of the Disclosure Schedule, the Company Common Stock holds shares of Company Common Stock that are non-transferable and is not subject to Tax in any jurisdiction other than its country of incorporation or formation by virtue of having a substantial risk permanent establishment, place of forfeiture within the meaning business or source of Section 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madeincome in that country.
Appears in 1 contract
Tax Returns and Audits. (i) The Company 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 concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has has: (A) paid or accrued all Taxes it is required to be paid pay or accrue and has (B) withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Except as set forth in Section 3.8(b)(v) of the Disclosure Schedule, the Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel access to or copies of all foreign, federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002inception.
(vii) There are (and as of immediately following the Effective Time 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 payableTaxes.
(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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G, 404 or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification tax indemnity or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" Company's tax basis in a distribution its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The As of the Effective Time, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") required to be filed by it at or prior to the Effective Time relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Effective Time, the Company has (A) will have timely paid all Taxes it is required to be paid pay and has withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paid(other than Taxes for which adequate accruals have been established in the Company Financials), and (B) will have accrued on the Current Balance Sheet all unpaid Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business.
(iii) No The Company has not been delinquent in the payment of any Tax (other than Taxes for which adequate accruals have been established in the Company Financials), nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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 (a) never been a member None of an affiliated group (the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(ix) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bx) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxii) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Knowledge of the Company and the Principal Shareholder, informally by any tax authority to the Company or any representative thereof.
(xiii) 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 the Company), (b) no liability for the Taxes of any person (other than the Company or any of its Subsidiaries) 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 and (c) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xiv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) 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 distribution which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
Series of related transactions" (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Rational Software Corp)
Tax Returns and Audits. (i) The Company has and its subsidiaries have (a) prepared and timely filed all required income and other material U.S. federal, state, local and foreign non-U.S. returns, estimates, information statements and reports reports, including any attachments or schedules thereto and amendments thereof ("“Returns"”) relating to any and all Taxes concerning or attributable to of the Company or and its operations. All subsidiaries and such Returns are true and correct in all material respects and (b) paid all Taxes they are required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company has and its subsidiaries have paid all Taxes required to be paid and has or withheld or paid with respect to its their Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all U.S. federal, state and foreign non-U.S. income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution ActAct amounts, Federal Unemployment Tax Act amounts and other Taxes required to be withheld, and have paid over any such withheld or paidTaxes to the appropriate Governmental Authorities.
(iii) No There is no Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed in writing against the CompanyCompany or any of its subsidiaries, nor has and neither the Company nor any of its subsidiaries has executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company or any of its subsidiaries has been proposed in writing by any tax Tax authority to the Company or any of its subsidiaries or any representative thereof, which adjustment has not been resolved. No written claim has ever been made by a taxing 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.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Balance Sheet Current Financials, neither the Company nor any of its subsidiaries had liabilities for unpaid Taxes which have had not been accrued or reserved on the Closing Balance SheetCurrent Financials, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its subsidiaries has not incurred any liability for Taxes since the date of the Closing Balance Sheet Current Financials other than in the Ordinary Course ordinary course of Businessbusiness, consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax income and other material Returns for the Company and its subsidiaries filed for all periods since December 31, 2002for which the applicable statute of limitations period has not expired.
(vii) There 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") Liens on the assets of the Company and its subsidiaries relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payablepayable or that are being contested in good faith pursuant to appropriate proceedings and for which adequate reserves have been established.
(viii) The Neither the Company has nor any of its subsidiaries (a) never has 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which is or was the Company), (b) never been is a party to any tax sharing, indemnification Tax Sharing Agreement or allocation agreementarrangement, nor does the Company or any of its subsidiaries owe any amount under any such agreementa Tax Sharing Agreement, or and (c) no has any liability for the Taxes of any person Person (other than Companythe Company of any of its subsidiaries) under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangementnon-U.S. Law), as a transferee or successor, by operation of law, by contract or agreement, or otherwise.
(ix) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Merger Agreement
Tax Returns and Audits. (i) The Company Each Sino-Canada Entity has (a) prepared and timely filed all required federal, state, local provincial, local, municipal and foreign returns, estimates, information statements and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to of the Company or its operations. All Sino-Canada Entities and such Returns are true and correct in all material respects and have been completed in accordance with applicable Law and (b) timely paid all Taxes they are required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company Each Sino-Canada Entity has paid withheld with respect to the Employees and other third parties, all federal, state, provincial and foreign Taxes required to be withheld, and, to the extent required, have timely paid and has such Taxes withheld or paid with respect to its Employees and 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, Federal Unemployment Tax Act and other Taxes required to be withheld or paidauthorities.
(iii) No Sino-Canada Entity has been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed in writing against the Companysuch Sino-Canada Entity, nor has the Company any Sino-Canada Entity executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company any Sino-Canada Entity is presently in progress, nor has the Company any Sino-Canada Entity been notified orally or in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material No Sino-Canada Entity has any liabilities for unpaid Taxes as for any period or portion of any period ending on or before the date of the Closing Balance Sheet Date which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company no Sino-Canada Entity has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course ordinary course of Businessbusiness.
(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, 2002.
(vii) There are (and immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Liens on the assets of the Company any Sino-Canada Entity relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. There is no 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 any Sino-Canada Entity.
(viiivii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been No Sino-Canada Entity is a party to any tax Tax sharing, indemnification or allocation agreement, agreement nor does the Company any Sino-Canada Entity owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Plan of Reorganization and Share Exchange Agreement (Hartcourt Companies Inc)
Tax Returns and Audits. (i) The Company 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 concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company Company: (A) has paid timely all material Taxes it is required to be pay and (B) has timely withheld (and paid and has withheld or paid over to the appropriate governmental authorities) with respect to its Employees employees or any third party all material federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extended the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the Knowledge of the Company, no audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on against in the Closing Balance SheetCompany Financials, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Company Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice.
(vi) The Company has made available provided to Parent or its legal counsel copies of all Tax federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002the date of Company’s incorporation.
(vii) There To the Knowledge of the Company, there are (and as of immediately following the Effective Time 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 Taxes, other than Liens for Taxes not yet due and payablepayable as of such time.
(viii) To the Knowledge of the Company, 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) There is no contract, agreement, plan or arrangement to which the Company is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G, 404 or 162(m) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(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.
(xi) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than CompanyCompany or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 agreementcontract, or otherwise, (c) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes and (d) never been a party to any Tax sharing, indemnification or allocation agreement nor does the Company owe any amount under any such agreements.
(ixxii) The Company is not not, and has not been, been at any time, a "“United States Real Property Holding Corporation" real property holding corporation” within the meaning of Section 897(c)(2) of the Code.
(xxiii) No adjustment or deficiency relating to any Return filed or required to be filed by the Company 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.
(xiv) The Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) distribution which could otherwise constitute part of a “plan” or any transaction that is the same as or substantially similar to one “series 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).
related transactions” (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Tax Returns and Audits. (i) The As of the Closing Date, the Company has and Company Sub will have prepared and timely filed all required federal, state, local provincial, local, municipal and foreign returns, declarations, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable ------- to the Company and Company Sub or its operations. All Taxes required to their operations and such Returns, and any extensions or amendments thereof, are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Closing Date, each of the Company has and the Company Sub (A) will have paid all Taxes they are required to pay (B) will have withheld all Taxes and other deductions required to be paid and has withheld including, without limiting the generality of the foregoing from all payments made to past or paid with respect to its Employees present employees, officers, directors, independent contractors, creditors, stockholders, non-residents and other third parties (and have, with the time required by law, paid over any such withheld amounts amount to the appropriate Taxing authorityproper governmental authorities and (C) all will not have any liabilities for unpaid federal, state provincial, state, local and foreign income taxes Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise and social security charges will not have incurred any liability for Taxes for the period commencing after the date of the Balance Sheet and similar feesending immediately prior to the Closing Date, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidthan in the ordinary course of business.
(iii) No Neither the Company nor the Company Sub has been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax. There are no matters relating to Taxes under discussion between the Company or the Company Sub and any governmental authority.
(iv) No audit or other examination of any Return of the Company or the Company Sub is presently in progress, nor has the Company or the Company Sub been notified in writing of any request for such an audit or other examination. No adjustment relating , nor is any governmental authority asserting, or to any Return filed by the Company has been proposed in writing by any tax authority Company's knowledge threatening to assert against the Company or the Company Sub any representative thereofclaims for Taxes.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal, provincial, state and local income and all state and local sales and use Returns for the Company and the Company Sub filed for all periods since December 31, 2002ending during the five year period preceding the Closing Date.
(viivi) There are (and immediately following the Effective Time 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.
(vii) Neither Company nor the Company Sub 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 the Company or the Company Sub.
(viii) The Company has (a) never been Neither the Company, nor any of its subsidiaries are "engaged in a member of an affiliated group (trade or business within the meaning of Code §1504(a)United States" or maintain a "permanent establishment" in the United States.
(ix) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group Neither Company nor the common parent of which was Company), (b) never been Company Sub is a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company or the Company Sub owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 For purposes of the CodeIncome Tax Act (Canada), each of the Company's and the Company Sub's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal and provincial income Tax deductions is accurately reflected on the Company's and the Company Sub's tax books and records, and the Company's and the Company Sub's losses, if any, for federal and provincial income tax purposes are accurately reflected on the Company's and the Company Sub's tax books and records.
(xi) The Company has not engaged in a "reportable transaction," Except as set forth in Treas. Reg. § 1.6011-4(b) on Schedule 2.8, no adjustment relating to any Return filed by the Company or the Company Sub has been proposed formally or, to the knowledge of the Company or the Company Sub, informally by any tax authority to the Company, the Company Sub 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)representative thereof.
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 Each of the CodeCompany and the Company Sub has remitted to the appropriate Tax authority when required by law to do so all amounts collected by it on account of Taxes under Part IX of the Excise Tax Act (Canada) and any similar provincial legislation and in respect of retail sales tax.
(xiii) No holder To the Company's knowledge and the knowledge of the Company Common Stock holds shares of Sub, no circumstances exist which would make the Company Common Stock that are non-transferable and or the Company Sub subject to the application of any of Sections 79 to 80.04 of the Income Tax Act (Canada). Neither the Company nor the Company Sub has acquired property or services from or disposed of property or provided services to, a substantial risk of forfeiture person with whom it does not deal at arm's length (within the meaning of Section 83 the 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 Code with respect to Income Tax Act (Canada).
(xiv) Neither Company nor the Company Sub has deducted any amounts in computing its income in a taxation year which may be included in a valid election subsequent taxation year under Section 83(b) 78 of the Code has not been madeIncome Tax Act (Canada).
(xv) The paid-up capital of the shares of the Company for purposes of the Income Tax Act (Canada) is Cdn$1.00 per share for each Common Share, Cdn$0.01002 per share for each Class "B" Special Share and Cdn$0.0001 per share for each Class "C" Voting Share.
Appears in 1 contract
Tax Returns and Audits. (i) The As of the Closing, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports required to have been filed before the Closing Date ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to their respective operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Closing, the Company has (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paid.withheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods covered by the Current Balance Sheet and will not have incurred any liability for Taxes for the period prior to the Closing other than in the ordinary course of business
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available to Parent Buyer or its legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002its formation.
(vii) There are (and immediately following the Effective Time 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 Seller or the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Neither Seller nor the Company has 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.
(aix) never been a member None of an affiliated group (the Company’s assets are treated as “tax-exempt use property”, within the meaning of Code §1504(a)Section 168(h) filing a consolidated federal income Tax Return of the Code.
(x) As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an expense under applicable law other than reimbursements of a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent reasonable amount of which was Company), entertainment expenses and other nondeductible expenses that are commonly paid by similarly situated businesses in reasonable amounts.
(bxi) never been a The Company is not party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwisethis Agreement.
(ixxii) Neither Seller nor the Company has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xiii) The Company’s tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company’s tax books and records.
(xiv) Neither Seller nor the Company is not is, and neither has not been, been at any time, a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(xxv) The Company has Seller does not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify have any outstanding liabilities for tax free treatment under Section 355 of the CodeTaxes.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Share Acquisition Agreement (Growth Stalk Holdings Corp)
Tax Returns and Audits. (i) The Company 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") reports, including attachments and amendments thereto relating to any and all Taxes concerning or attributable to the Company or its operations. All operations (“Returns”) and such Returns are true, correct and complete and have been completed in accordance with applicable law, and (B) timely paid all Taxes it is required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company has paid all Taxes required to be paid and has or withheld or paid with respect to its Employees employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all U.S. federal, state state, local and foreign non-U.S. income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution ActAct amounts, Federal Unemployment Tax Act amounts and all other Taxes required to be withheld or paid, and has timely paid any such Taxes withheld over to the appropriate authorities.
(iii) No The Company has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax Tax authority to the Company or any representative thereofthereof and is pending. No claim has ever been made by a Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Returns.
(v) The Company had no material liabilities for unpaid Taxes As of the Balance Sheet Date and as of the date of the Closing Balance Sheet which Interim Financials, the Company did not have any liabilities for unpaid Taxes that had not been accrued or reserved on the Closing Current Balance SheetSheet or the Interim Financials, as applicable, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice. Adequate accruals or reserves have been established in the Company’s Tax and accounting books and records for all liabilities for Taxes incurred by the Company since the date of the Interim Financials, whether asserted or unasserted, contingent or otherwise.
(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 the year ended December 31, 20022007.
(vii) There 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") Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. There is no 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.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "“reportable transaction," ” as set forth in Treas. Reg. § §1.6011-4(b) or ), including any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service IRS has determined to be a tax Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "“listed transaction", ,” as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xiiix) The Company will not be required to include any material has been treated and is and has been validly classified for U.S. federal income or material gain or exclude any material deduction or material loss from Taxable income tax purposes as a result of any closing agreement under Section 7121 of partnership or disregarded entity at all times since inception. No election has been made within the Codelast sixty (60) months to change the Company’s tax classification for U.S. federal income tax purposes.
(xiiix) No holder of The Company Common Stock holds shares of is not and has not at any time been treated as resident in any country other than the United States for any Tax purpose (including under any Tax treaty). The Company Common Stock that are is not subject to Tax in any non-transferable and subject to U.S. jurisdiction by virtue of having a substantial risk permanent establishment, place of forfeiture within business or source of income in that jurisdiction. The Company is not liable for any non-U.S. Tax as the meaning agent of Section 83 any other Person or business or on the basis that it constitutes a permanent establishment or other place of the Code with respect to which a valid election under Section 83(b) business of the Code has not been madeany other Person, business or enterprise for any Tax purpose.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the --------- Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances Liens of any sort (collectively, "Liens") on the assets of the Company the relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has Shareholders have 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 any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company ------- Company, or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances Liens of any sort (collectively, "Liens") on the assets of the Company the relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has Members have 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 any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has as of the Closing will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to , and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing: (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld, and (B) has accrued on the Current Balance Sheet all Taxes attributable to the periods covered by the Current Balance Sheet and will not have incurred any liability for Taxes for the period prior to the Closing other than in the ordinary course of business.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent the Purchaser or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There are (and immediately following the Effective Time 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.
(viii) The Neither the Company nor any Principal Shareholder 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 the Company.
(aix) never been a member None of an affiliated group (the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxi) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxii) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) No adjustment relating to any Return filed by the Company has been proposed formally or informally by any tax authority to the Company or any representative thereof.
(xv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of files its income Tax Returns on the Codeaccrual basis.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Inference Corp /Ca/)
Tax Returns and Audits. (i) The Company has prepared and timely filed all required material federal, state, local and foreign returns, statements, estimates, information statements statements, documents, forms and reports in respect of Taxes ("“Returns"”) relating required to any be filed by it, and such Returns are true and correct in all material respects and have been completed in all material respects in accordance with applicable Law. The Company has paid all Taxes concerning or attributable to the Company or its operations. All Taxes it is required to have been paid by the Company pay (whether or not shown on any Tax Return) have been paid).
(ii) The Company has complied in all material respects with all applicable Laws relating to the payment, reporting and withholding of Taxes (including, without limitation, withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471, 1472, 1473, and 1474 of the Code or similar provisions under any federal, state, local or foreign Law), has, within the time and in the manner prescribed by Law, withheld from employee wages or consulting compensation and timely paid over to the proper governmental authorities (or is properly holding for such timely payment) all Taxes amounts required to be paid and has so withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) under all federalapplicable Laws, including federal and state income Taxes, state, local and foreign income taxes and social security charges and sales, use or other similar feesTaxes, Federal Insurance Contribution Act, Federal Unemployment Medicare, relevant state income and employment Tax Act withholding Laws, and other Taxes required to be withheld has timely filed all withholding and sales or paiduse Tax Returns, for all periods.
(iii) No The Company has never been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) The Company has disclosed on its federal income Tax Returns all positions that could give rise to a substantial understatement penalty under Section 6662 of the Code.
(v) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified by any Tax authority (orally or in writing writing, formally or informally) of any threat or plan to request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(vvi) The Company had has no material liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which that have not been accrued or reserved on the Closing Current Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability no Liability for Taxes since the date of the Closing Current Company Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vivii) 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 31its inception, 2002together with all related workpapers and analysis created by or on behalf of the Company.
(viiviii) There are (and and, immediately following the Effective Time 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 customary Liens for Taxes not yet due and payable.
(viiiix) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) 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 that could affect the Company’s Liability for Taxes for any period after the Closing Date. The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing as a result of any: (i) adjustment pursuant to Section 481 of the Code (or any corresponding or similar provision of federal, state, local or foreign Tax Law); (ii) installment sale or open transaction disposition made on or prior to the Closing; (iii) prepaid amount received on or prior to the Closing; (iv) intercompany transaction or any excess loss account described in Treasury Regulations under Section 1502 of the Code; (v) election with respect to income from the discharge of indebtedness under Section 108(i) of the Code; or (vi) any similar election, action or agreement that would have the effect of deferring Liability for Taxes of the Company from any period ending on or before the Closing Date to any period ending after the Closing Date.
(xi) With respect to any stock or other property transferred in connection with the performance of services for the Company, a valid Section 83(b) election in accordance with the requirements of the Code has been made, copies of which have been made available to Parent.
(xii) The Company has not never constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
(xixiii) The Company has not engaged in a "reportable transaction," Except as set forth in Treas. Reg. § 1.6011-4(bSection 2.9(a)(xvi) of the Company Schedule of Exceptions, the Company is not party to any Contract, Company Employee Plan, Employee Agreement or any transaction other arrangement that is the same as or substantially similar in any part a “nonqualified deferred compensation plan” subject to one Section 409A of the types of transactions that Code and the Internal Revenue Service has determined to be regulations and other guidance promulgated thereunder. The Company is not a tax avoidance transaction and identified by notice, regulationparty to, or otherwise obligated under, any Contract, Company Employee Plan, Employee Agreement or other form of published guidance as arrangement that provides for a "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 material gain or exclude any material deduction or material loss from Taxable income as a result gross up of any closing agreement under Tax imposed by Section 7121 409A of the Code.
(xiii) . Each such nonqualified deferred compensation plan has been operated in compliance in all material respects in both form and in operation with Section 409A of the Code. No holder of Company Option or other right to acquire Company Common Stock holds shares or other equity of the Company Common Stock (A) has an exercise price that are non-transferable and subject to a substantial risk has ever been less than the fair market value of forfeiture the underlying equity as of the date such option or right was granted, (B) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights (within the meaning of Section 83 409A of the Code Code), (C) has been granted after December 31, 2004, with respect to which a valid election any class of stock of the Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 83(b) 409A of the Code Code) or (D) has not been madefailed to be properly accounted for in the Company Financial Statements.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ikena Oncology, Inc.)
Tax Returns and Audits. (i) The Company has prepared Except as and filed to the extent disclosed in Schedule 6.8 annexed hereto: (i)on the date hereof and on the Closing Date, all required federal, state, state and local tax returns and foreign returns, estimates, information statements and tax reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to have been paid by the Company (whether or not shown on any Tax Return) have been paid.
(ii) The Company has paid all Taxes required to be paid filed by Xxxxxx on or before the date of this Agreement or the Closing Date, as the case may be, have been and has withheld or paid will have been timely filed with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authoritygovernmental agencies in all jurisdictions in which such returns and reports are required to be filed; (ii) all federal, state and foreign income taxes and social security charges and similar feeslocal income, Federal Insurance Contribution Actfranchise, Federal Unemployment Tax Act sales, use, property, excise and other Taxes taxes (including interest and penalties and including estimated tax installments where required to be filed and paid) due from or with respect to the Xxxxxx as of the date hereof and as of the Closing Date have been and will have been fully paid, and appropriate accruals shall have been made on the Xxxxxx'x books for taxes not yet due and payable; (iii) as of the Closing Date, all taxes and other assessments and levies which the Xxxxxx is required by law to withhold or to collect on or before the Closing Date will have been duly withheld and collected, and will have been paid over to the proper governmental authorities to the extent due and payable on or paidbefore the Closing Date; and (iv) there are no outstanding or pending claims, deficiencies or assessments for taxes, interest or penalties with respect to any taxable period of Xxxxxx. At and after the Closing Date, Xxxxxx will not have any liability for any federal, state or local income tax with respect to any taxable period ending on or before the Closing Date, except as and to the extent disclosed in Schedule 6.8.
(ii) There are no audits deficiencies, claims, actions, suits, proceedings or investigations pending with respect to any federal, state or local tax returns of Xxxxxx, and no waivers of statutes of limitations have been given or requested with respect to any tax years or tax filings of Xxxxxx.
(iii) No Tax deficiency is outstandingXxxxxx has not executed or entered into (and, assessed or, prior to the Knowledge Closing, will not execute or enter into) with the Internal Revenue Service or any other taxing authority (A) any agreement or other document extending or having the effect of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment assessments or collection of any Tax with continuing effecttaxes for which Xxxxxx would be liable or (B) a closing agreement pursuant to Section 7121 of the Internal Revenue Code of 1986, as amended (the "Code"), or any predecessor provision thereof or any similar provision of foreign, state or local tax law that relates to the assets or operations of Xxxxxx.
(iv) No audit or other examination of any Return of the Company Xxxxxx is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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, 2002.
(vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does contract or arrangement that would result, by reason of the Company owe any amount under any such agreement, or (c) no liability for the Taxes consummation of any person (other than Company) under Treas. Reg. § 1.1502-6 (of the transactions contemplated herein, separately or in the aggregate, in the payment of any similar provision of state, 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) The Company is not and has not been, at any time, a "United States Real Property Holding Corporationexcess parachute payment" within the meaning of Section 897(c)(2) 280G of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("“Returns"”) relating to any and all material Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has timely paid all material Taxes it is required to be paid pay and has timely paid or withheld or paid with respect to its Employees and 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, Federal Unemployment Tax Act and other Taxes required to be withheld paid or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, the Company did not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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 Taxes, other than Liens for Taxes not yet due and payable. The Company does not have 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.
(viii) The Company does not treat any of its assets as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) 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.
(x) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or agreement (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 agreementcontract, or otherwiseotherwise and (d) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(ixxi) The Company is not and has not been, been at any time, a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(xxii) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Knowledge of the Company, informally by any tax authority to the Company or any representative thereof.
(xiii) The Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) distribution which could otherwise constitute part of a “plan” or any transaction that is the same as or substantially similar to one “series 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).
related transactions” (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Merger Agreement (Google Inc.)
Tax Returns and Audits. (i) The Company has prepared and timely filed (or have properly filed the extensions for) all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company Company, its subsidiaries or its operations. All Taxes required to operations thereof and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company (A) has paid all Taxes it is required to be paid pay and has withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld, and (B) has accrued on the Company Financial Statements all Taxes attributable to the periods covered by the Company Financial Statements and has not incurred any liability for Taxes for the period prior to the Closing Date other than in the ordinary course of business.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the CompanyCompany by the Internal Revenue Service (the "IRS") or any other governmental taxing authority, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company or any of its subsidiaries is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. .
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.
(vi) The Company has made available to Parent the Buyer or its legal counsel counsel, copies of all Tax federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002the past five (5) years.
(vii) There are (and immediately following the Effective Time Closing Date 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 Neither Shareholder has any 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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Internal Revenue Code §1504(aof 1986, as amended (the "Code").
(x) filing There is no any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company or its subsidiaries as an expense under applicable law.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Company), Code) owned by the Company or its subsidiaries.
(bxii) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gateway International Holdings Inc)
Tax Returns and Audits. (i) The As of the Effective Time, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Effective Time, the Company has (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business and as will be set forth on the Closing Date Balance Sheet.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have and, as of the Effective Time, shall not have, any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness except as will be set forth on the Closing Date Balance Sheet.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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) Neither the Company nor any Stockholder or Founder 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 the Company.
(ix) None of the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (af) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xi) Except as set forth in Section 2.9 of the Disclosure Schedule, the Company (A) has 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)tax return, (bB) never been is not a party to any tax sharing, indemnification or allocation agreement, similar agreement nor does the Company owe any amount under any such agreement, or and (cC) no liability is not liable for the Taxes of any other person (other than Company) under TreasTreasury Regulation ss. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, successor or by contract or agreement, or otherwise).
(ixxii) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Knowledge of the Company, the Founders and the Stockholders, informally by any tax authority to the Company or any representative thereof.
(xv) The Company has not constituted either requested or received a "distributing corporation" ruling from any taxing authority or signed a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codewith any taxing authority.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Va Linux Systems Inc)
Tax Returns and Audits. (i) The Company has Company, the Subsidiaries and the Prior Subsidiaries as of the Effective Time will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports (collectively the "Returns") relating to any and all Taxes concerning or attributable to the Company, the Subsidiaries and any predecessor subsidiaries of the Company or its operations. All Taxes required to any Subsidiaries that have been paid by dissolved, merged into or otherwise combined with the Company or any Subsidiaries (whether the "Prior Subsidiaries") or not shown on any Tax Return) their operations, and such Returns are true and correct and have been paidcompleted in accordance with applicable law.
(ii) The Company has Company, the Subsidiaries and the Prior Subsidiaries as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid and timely remitted with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidand remitted.
(iii) No The Company, the Subsidiaries and the Prior Subsidiaries have not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, or to the Knowledge of the Company, 's knowledge proposed against the Company, the Subsidiaries and the Prior Subsidiaries, nor has the Company Company, the Subsidiaries and the Prior Subsidiaries executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Unaudited Balance Sheet, whether asserted or unasserted, contingent or otherwise, otherwise and the Company has not incurred any liability liabilities for Taxes since the date of the Closing Unaudited Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31January 1, 20021993.
(vii) There 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 taxes not yet due and payable.
(viii) The Company has no knowledge of any 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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 404 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, at any timebeen within the time period set forth in Section 897(c)(i)(A)(ii), a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" Company's tax basis in a distribution its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is properly reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (American Business Information Inc /De)
Tax Returns and Audits. (i) The Company and any consolidated, combined, unitary or aggregate group for Tax purposes of which the Company is or has prepared been a member (A) have properly completed and timely filed all Tax Returns required federalto be filed by them or on their behalf, state, local and foreign returns, estimates, information statements and reports ("Returns"B) relating to any and have timely paid all Taxes concerning or attributable to the Company or its operations. All material Taxes required to have been be paid by the Company them for which payment was due (whether or not shown on any Tax Return), (C) have been paidestablished an adequate accrual or reserve for the payment of all Unpaid Tax Obligations payable in respect of the periods or portions thereof prior to the Balance Sheet Date (which accrual or reserve as of the Balance Sheet Date is fully reflected on the Company Balance Sheet) and will establish an adequate accrual or reserve for the payment of all Unpaid Tax Obligations payable by the Company in respect of the periods or portion thereof through the Closing Date, (D) have made (or will make on a timely basis) all estimated Tax payments required to be made, and (E) have no Liability for Unpaid Tax Obligations in excess of the amount so paid or accruals or reserves so established. All Tax Returns filed by or on behalf of the Company are true, complete and correct in all respects, and the Company has provided or made available to Buyer true, complete and correct copies of such Tax Returns.
(ii) The No deficiencies for any Tax have been threatened, claimed, proposed or assessed against the Company has paid all Taxes required to be paid and has withheld or paid with respect to any of its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalofficers, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld employees or paidagents in their capacity as such.
(iii) No Tax deficiency is outstanding, assessed or, to The Company has not received any notification from the Knowledge of IRS or any other taxing authority regarding any issues that (A) are currently pending before the IRS or any other taxing agency or authority (including any sales or use taxing authority) regarding the Company, proposed against or (B) have been raised by the Company, nor has IRS or other taxing agency or authority and not yet finally resolved. No Tax Return of the Company executed is under audit by the IRS or any waiver of other taxing agency or authority and any statute of limitations on or extension such past audits (if any) have been completed and fully resolved to the satisfaction of the period for applicable taxing agency or authority conducting such audit and all Taxes determined by such audit to be due from the assessment Company have been paid in full to the applicable taxing agencies or collection of authorities or adequate reserves therefore have been established and are reflected in the Company Balance Sheet. The Company has not requested or received any Tax with continuing effectletter ruling from the IRS (or any comparable ruling from any other taxing authority).
(iv) No audit or other examination Liens for Taxes are currently in effect against any of any Return the assets of the Company other than Liens that arise by operation of Law for Taxes not yet due and payable. There is presently not in progress, effect any waiver by the Company of any statute of limitations with respect to any Taxes or Tax Returns nor has the Company agreed to any extension of time for filing any Tax Return that has not been notified filed. The Company has not consented to extend to a date later than the Closing Date the period in writing of which any request for such an audit Tax may be assessed or other examinationcollected by any taxing agency or authority. No adjustment relating power of attorney with respect to any Return filed by the Company Taxes has been proposed in writing executed or filed with any Governmental Authority by any tax authority to or on behalf of the Company or any representative thereofCompany.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have has not paid, and has not been accrued or reserved on the Closing Balance Sheetrequired to pay pursuant to any Law, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Businessto any foreign Governmental Authorities.
(vi) The Company has made available to Parent received, from each employee or its legal counsel copies former employee of all Tax Returns for the Company who holds stock that is subject to a substantial risk of forfeiture as of the date of this Agreement, a copy of the election(s) made under Section 83(b) of the Code with respect to all such shares, and the Company has no Knowledge that such elections were not validly made and filed for all periods since December 31, 2002with the IRS in a timely fashion.
(vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material item of income or material gain in, or exclude any material item of deduction or material loss from from, Taxable income for any Taxable period (or portion thereof) ending after the Closing Date as a result of: (A) the application of Section 481 or Section 263A of the Code (or corresponding provisions of state or foreign Tax Laws) to transactions, events or accounting methods employed prior to the Closing, (B) any “closing agreement 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, (C) any “intercompany transaction” or any “excess loss account” (within the meaning of Treasury Regulations Sections 1.1502-13 and 1502-19, respectively) (or any corresponding or similar provision or administrative rule of federal, state, local or foreign income Tax Law), (D) any installment sale or open transaction made on or prior to the Closing date, (E) any prepaid amount received on or prior to the Closing Date, or (F) an election under Section 7121 108(i) of the Code.
(xiiiviii) 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 83 of the Code with respect to which a valid election under Section 83(bSchedule 3.27(a)(viii) of the Code Company Disclosure Schedule lists the periods for which the Tax Returns required to be filed by the Company have been examined by the IRS or other appropriate taxing authority. All deficiencies and assessments asserted as a result of such examinations or other audits by federal, state, local or foreign taxing authorities have been paid, fully settled or adequately provided for in the Company Financial Statements, and no issue or claim has been asserted in writing for Taxes by any taxing authority for any prior period, other than those heretofore paid or provided for in the Company Financial Statements.
(ix) Schedule 3.27(a)(ix) of the Company Disclosure Schedule contains a list of states, territories and jurisdictions (whether foreign or domestic) in which the Company files, or is required to file or has been required to file a Tax Return or is or has been liable for any Taxes on a “nexus” basis. No Governmental Authority in any state, territory or jurisdiction where the Company does not been file Tax Returns has made, or could reasonably make in good faith, a claim that the Company is required to file Tax Returns in such state, territory or jurisdiction.
(x) Notwithstanding anything herein to the contrary, no representations are made concerning the amounts of or Buyer’s or the Company’s ability to utilize or otherwise benefit from Company net operating losses, capital losses, deductions, Tax credits and other similar items of the Company.
Appears in 1 contract
Samples: Merger Agreement (RetailMeNot, Inc.)
Tax Returns and Audits. Except as set forth on Schedule 2.10: ---------------------- -------------
(i) The Company has as of the Effective Time will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to , and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) timely remitted all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is or reassessment outstanding, assessed orassessed, to the Knowledge of the Company, notified or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing December Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of the Company's incorporation.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, mortgages, charges, adverse 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 payableTaxes.
(viii) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, would give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(ix) 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 (af) never been a member asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by the Company.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of tax deductions is accurately reflected on the CodeCompany's tax books and records.
(xiii) No holder The Company has never been a member 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 an affiliated group (as defined in Section 83 1504 of the Code with respect to which or any similar provision of any state tax law) or filed or been included on a valid election under Section 83(b) of the Code has not been madecombined, consolidated or unitary Return.
Appears in 1 contract
Samples: Merger Agreement (Software Com Inc)
Tax Returns and Audits. (i) The As of the Closing, the Company has and the Subsidiary will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to ------- any and all Taxes concerning or attributable to the Company Company, the Subsidiary or its operations. All Taxes required to their operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Closing, the Company has and the Subsidiary (A) will have paid all Taxes they are required to be paid pay and has will have withheld or paid with respect to its Employees their employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other ---- ---- Taxes required to be withheld or paidwithheld, and (B) will have accrued on the Most Recent Balance Sheet all Taxes attributable to the periods covered by the Most Recent Balance Sheet and will not have incurred any liability for Taxes for the period prior to the Closing other than in the ordinary course of business.
(iii) No Neither the Company nor the Subsidiary has been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the CompanyCompany or the Subsidiary, nor has the Company executed there been any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectother than Federal Income Tax for the years 1994, 1995 and 1996 as part of a Parent waiver.
(iv) No audit or other examination of any Return of the Company or the Subsidiary is presently in progress, and neither Parent, the Seller nor has the Company have been notified in writing of any request for such an audit or other examination. examination other than a Federal Income Tax audit for the years 1994, 1995 and 1996 as part of a Parent audit.
(v) No adjustment relating to any Return Returns filed by either Parent, the Seller, the Company or the Subsidiary has been proposed in writing formally or informally by any tax Tax authority to either Parent, the Company Seller, the Company, the Subsidiary or any representative thereof.
(vvi) The Neither the Company had no material nor the Subsidiary has any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Most Recent Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has and the Subsidiary have not incurred any liability for Taxes since the date of the Closing Most Recent Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vivii) The Company has made available to Parent Buyer or its legal counsel counsel, copies of all Tax foreign, pro forma federal and state income Returns for 1996, 1997 and 1998 and all state sales and use Returns for the Company filed for all periods since December 311997, 20021998 and 1999.
(viiviii) There are (and immediately following the Effective Time 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 or the Subsidiary relating to or ----- attributable to Taxes other than Liens for Taxes not yet due and payable.
(viiiix) The Except as set forth on Section 2.10(b)(ix) of the Company Disclosure Schedule, neither Parent, the Seller nor the Company has any 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 the Subsidiary.
(ax) never been a member None of an affiliated group (the Company's assets nor the Subsidiary's assets are treated as "tax-exempt use property", within the meaning of Section 168(h) of the Internal Revenue Code §1504(aof 1986, as amended, of the United States (the "Code"). ----
(xi) filing As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or the Subsidiary that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an expense under applicable law.
(xii) Neither Parent, Seller nor the Company has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by Parent, Seller or the Company), .
(bxiii) never been Neither the Company nor the Subsidiary is a party to any tax sharing, indemnification or allocation agreement, nor does the Company or the Subsidiary owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiv) The Each of the Company's and the Subsidiary's tax basis in its assets for purposes of determining its future amortization, depreciation and other income tax deductions is accurately reflected on the Company's and the Subsidiary's respective tax books and records.
(xv) Neither the Company is not nor the Subsidiary is, and neither has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxvi) The Neither the Company nor the Subsidiary has not constituted either been a "distributing corporation" or a "controlled corporation" participant in a distribution of stock intended to qualify for tax free treatment under transaction described in Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.8: ----------------------
(i1) The Company has prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii2) The Company Company: (A) has paid or accrued all Taxes it is required to be paid pay or accrue and (B) has withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income Taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii3) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv4) No audit or other examination of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v5) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company Holder has not incurred no knowledge of any basis of the assertion of any such liability attributable to the Company, its assets or operations.
(6) The Holder has provided to Synbiotics copies of all the Company's federal and state income and all state sales and use Tax Returns for Taxes all periods since the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany's incorporation.
(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, 2002.
(vii7) There are (and as of immediately following the Effective Time 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 payableTaxes.
(viii8) The Holder has no knowledge of any basis for the assertion against the Company of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company.
(9) None of the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(10) The Company has no contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(a11) never been 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 member subsection (f) asset (as defined in Section 341(f)(4) of an affiliated group the Code) owned by the Company.
(within the meaning of Code §1504(a)12) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ix13) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x14) The Company has not constituted either a "distributing corporation" or a "controlled corporation" Company's tax basis in a distribution its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company 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 concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company Company: (A) has paid timely or accrued all Taxes it is required to be pay or accrue and (B) has timely withheld (and paid and has withheld or paid over to the appropriate governmental authorities) with respect to its Employees employees or any third party all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extended the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on against in the Closing Balance SheetCompany Financials, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Company Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice.
(vi) The Company has provided or made available to Parent or its legal counsel copies of all Tax federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002the date of Company's incorporation.
(vii) There are (and as of immediately following the Effective Time 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 Taxes, other than Liens for Taxes not yet due and payablepayable 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) There is no contract, agreement, plan or arrangement to which the Company is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G, 404 or 162(m) of the Code.
(x) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(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.
(xi) The Company has (a) never been a member of an affiliated group (within the meaning of Code §1504(a(S)1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than CompanyCompany or any of its Subsidiaries) under Treas. Reg. § (S) 1.1502-6 (or any similar provision of state, 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 agreementcontract, or otherwiseotherwise and (c) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(ixxii) The Company is not a party to any tax sharing, indemnification or allocation agreement and does not owe any amount under any such agreements.
(xiii) The Company is not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) No adjustment or deficiency relating to any Return filed or required to be filed by the Company 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.
(xv) The Company utilizes the accrual method of accounting for U.S. federal income tax purposes.
(xvi) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a "plan" or "Series of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xixvii) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) taken any action nor knows of any fact, agreement, plan or any transaction other circumstance that is reasonably likely to prevent 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 Merger from qualifying 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 material income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement reorganization under Section 7121 368(a) 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cobalt Networks Inc)
Tax Returns and Audits. Except as set forth on Schedule 4 (h),
(i) The Company has prepared and filed all required federal, state, local and foreign material Tax (hereinafter defined) returns, estimatesstatements, information statements reports and reports forms (including estimated Tax returns and reports, collectively such returns the "Tax Returns") relating ; provided, however, that "Tax Returns" shall not include any such return, statement, report, or form related to any and all Taxes concerning employee benefit plan, program, or attributable to the Company or its operations. All Taxes arrangement) required to have been paid be filed on or before the Closing by the Company Seller Group (whether or not shown on hereinafter defined) and each of the Constituent Companies (hereinafter defined) with any Tax ReturnTaxing Authority (hereinafter defined) have been paid.or will be timely filed, and all items of income, gain, loss, deduction or credit ("Tax Items") required to be included in such Tax Returns have been or will be so included in such Tax Returns in the correct amount;
(ii) The the Seller Group has timely paid, withheld or made provision (or has caused the appropriate Constituent Company has paid to timely pay, withhold or make provision) for all Taxes required to be paid shown as due and has withheld or paid with respect to its Employees and 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, Federal Unemployment payable on such Tax Act and other Taxes required to be withheld or paid.Returns;
(iii) No Tax deficiency is outstanding, assessed or, the Seller Group has made or will make provision for all Taxes payable by or with respect to the Knowledge of the Company, proposed against the Company, nor Constituent Companies for any Pre-Closing Tax Period (hereinafter defined)for which no Tax Return has the Company executed any waiver of any statute of limitations on or extension of the period for the assessment or collection of any Tax with continuing effect.yet been filed;
(iv) No audit or other examination of any Return all Tax Returns filed with respect to Taxable years of the Company is presently in progressSeller Group through the Taxable year ended December 31, nor 1994 have been examined and closed or are Tax Returns with respect to which the applicable period for assessment under the applicable law, after giving effect to extensions or waivers, has expired, and all state Tax Returns of the Company Seller Group which include the Constituent Companies through the Taxable year ended December 13, 1994 have been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.examined and closed;
(v) The Company had no material liabilities for unpaid Taxes as neither the Seller Group nor any of the date Constituent Companies has granted any extension or waiver of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred statute of limitation applicable to any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Business.Tax Returns;
(vi) The Company has made available there is no material Tax claim, audit, action, suit or proceeding now pending or threatened against or with respect to Parent or its legal counsel copies any of all Tax Returns for the Company filed for all periods since December 31, 2002.Constituent Companies;
(vii) There there are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances requests for rulings in respect of any sort (collectively, "Liens") on the assets Tax pending between any of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due Constituent Companies and payable.any Taxing Authority;
(viii) The Company none of the Constituent Companies has (a) never been a member of an affiliated group (within other than the meaning of Code §1504(a)) filing Seller Group or filed or been included in a combined, consolidated federal income or unitary Tax Return (other than one filed by the Seller Group or by a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group member of the common parent of which was Company), (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.Seller Group;
(ix) The Company none of the Constituent Companies (A) is not and has not been, at any time, a "United States Real Property Holding Corporationpassive foreign investment company" as defined in Section 1296 of the Code, (B) would be required to report a material amount of "Subpart F income," within the meaning of Section 897(c)(2) 952 of the Code.
, attributable to the operation of such entity if such entity's taxable year ended on the day before the Closing Date, or (xC) The Company has not constituted either incurred a "distributing corporationdual consolidated loss" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 1503 of the Code with respect to which a valid election under Code;
(x) none of the Constituent Companies has an overall foreign loss within the meaning of Section 83(b904(f) of the Code for periods through December 31, 1996;
(xi) each of the Constituent Companies (A) has not been madeused its best efforts to obtain from its employees such documentation as is required by law establishing the amount of Employment Taxes required to be withheld from such employees or from any third party; (B) has properly withheld such Employment Taxes from wages or other compensation paid to its employees or to any third party in accordance with such documentation; (C) has timely paid or deposited or caused to be timely paid or deposited, all Employment Taxes required by applicable law to be paid or deposited with respect to its employees or any third party; (D) has properly maintained records reflecting all Tax Returns filed with any Taxing Authority with respect to amounts of Taxes described in (B) and (C) of this subparagraph (xi); and (E) has properly maintained the information described in (A) of this subparagraph (xi); and
(xii) none of the Constituent Companies (A) is currently under any contractual obligation to indemnify any other person with respect to Taxes, and (B) is a party to any agreement providing for payments with respect to Taxable income or Tax benefits except for any Tax sharing agreement applicable to the Seller Group for the periods prior to the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company 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 concerning or attributable to the Company or its operations. All Taxes (“Returns”) required to have been paid be filed by the Company (whether or not shown on with any Tax Return) have been paid.
(ii) authority 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 has paid all Taxes required shown to be paid due and has payable on such Returns.
(ii) All Taxes that the Company is required by law to withhold or collect have been duly withheld or paid with respect to its Employees collected, and other third parties (and have been timely paid over any withheld amounts to the appropriate Taxing authority) all federal, state proper governmental authorities to the extent due and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidpayable.
(iii) No The Company has not been delinquent in the payment of any material Tax nor is there any material Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any unexpired waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the knowledge of the Company and EHL, no audit or other examination of any Return of the Company by any Tax authority is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. .
(v) No material adjustment relating to any Return Returns filed by the Company has been proposed in writing writing, formally or informally, by any tax Tax authority to the Company or any representative thereof.
(vvi) The Company had has no liability for any material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued for or reserved in accordance with Singapore GAAP on the Closing Balance SheetCompany’s balance sheets included in the Audited Financial Statements or in accordance with US GAAP on the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred other than any liability for unpaid Taxes that may have accrued since the date end of the Closing Balance Sheet other than most recent fiscal year in connection with the operation of the business of the Company in the Ordinary Course ordinary course of Business.
(vi) The Company has made available business, none of which is material to Parent the business, results of operations or its legal counsel copies financial condition of all Tax Returns for the Company filed for all periods since December 31, 2002Company.
(vii) There are (The Company has not taken any action and immediately following the Effective Time there will be) no liensdoes not know of any fact, pledgesagreement, charges, claims, restrictions on transfer, mortgages, security interests plan or other encumbrances circumstance that is reasonably likely to prevent either the Acquisition or Share Transfer from qualifying as a reorganization within the meaning of any sort (collectively, "Liens"Section 368(a) on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payableCode.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) Person under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or for foreign law, including any arrangement for group Tax or consortium relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreementcontract, or otherwise.
(ix) The Neither the Company nor EHL is not and has not been, at any time, (i) a "United States Real Property Holding Corporation" “controlled foreign corporation” (a “CFC”) within the meaning of Section 897(c)(2) 957 of the Code.
Code or (xii) The Company has not constituted either a "distributing corporation" or “passive foreign investment company (a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi“PFIC”) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 1297 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madeCode.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ascend Acquisition Corp.)
Tax Returns and Audits. (i) The Company has as of the Effective Time will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance SheetSheet or accrued in the ordinary course of business consistent with past practice, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no Knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of Company's incorporation.
(vii) There are (and as of immediately following the Effective Time Date 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 payableTaxes.
(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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax- exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" Company's tax basis in a distribution its assets for purposes of stock intended to qualify for determining its future amortization, depreciation and other federal income tax free treatment under Section 355 of deductions is accurately reflected on the CodeCompany's tax books and records.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Merger Agreement (Goto Com Inc)
Tax Returns and Audits. (i1) The Company has prepared correctly computed all Taxes prepared, and duly and timely filed all required federal, stateprovincial, local and foreign returns, estimates, information statements and reports ("Tax Returns") relating ), required to any and be filed by it, has timely paid all Taxes concerning or attributable to which are due and payable and have made adequate provision in the Company or its operations. All Taxes May 31, 2000 and in any other financial record that is required to have been paid be produced by the Company (whether pursuant to this Agreement, for the payment of all Taxes not yet due and payable for any taxation year ending on or not shown on any Tax Return) have been paid.
(ii) prior to the Closing. The Company has paid all also made adequate and timely installments of Taxes required to be paid and has withheld or paid with made.
(2) With respect to its Employees and 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, Federal Unemployment periods for which Tax Act and other Taxes Returns have not yet been required to be withheld filed or paidfor which Taxes are not yet due and payable, the Company has only incurred liabilities for Taxes in the ordinary course of its business and in a manner and at a level consistent with prior periods. All such Taxes, including Taxes for the period between June 1st, 2000 and the Closing have been, or will be, reflected as a current liability on the Estimated Balance Sheet or on any other financial record that is required to be produced by the Company pursuant to this Agreement.
(iii3) No All Tax deficiency is outstanding, assessed or, to the Knowledge Returns of the CompanyCompany have been assessed through and up to and including each of the dates set forth in Schedule 2.01(x), and there are no outstanding waivers of any limitation periods or agreements providing for an extension of time for the filing of any Tax Return or the payment of any Tax by the Company or any outstanding objections to any assessment or reassessment of Taxes. Any deficiencies proposed against as a result of such assessments or reassessments of the CompanyTax Returns through and including the date set forth in Schedule 2.01(x) have been paid and settled.
(4) There are no contingent Tax liabilities or any grounds that could prompt an assessment or reassessment, including, but without limitation, aggressive treatment of income, expenses, deductions, credits or other amounts in the filing of earlier or current Tax Returns, nor has the Company executed received any waiver of indication from any statute of limitations on or extension of the period for the taxation authorities that an assessment or collection reassessment of any Tax with continuing effectis proposed or imminent.
(iv5) No audit The Company has withheld from each payment made to any of its past and present shareholders, directors, officers, employees and agents the amount of all Taxes and other deductions required to be withheld and has paid such amounts when due, in the form required under the appropriate legislation, or made adequate provision for the payment of such amounts to the proper receiving authorities.
(6) The Company has collected from each receipt from any of its past and present customers (or other examination persons paying amounts to the Company) the amount of all Taxes (including goods and services tax and provincial sales taxes) required to be collected and has remitted such Taxes when due, in the form required under the appropriate legislation or made adequate provision for the payment of such amount to the proper receiving authorities.
(7) The Company is not subject to any assessments, levies, penalties or interest with respect to Taxes which will result in any liability on its part in respect of any Return period ending on or prior to the Closing, in excess of the amount to be provided for in the Financial Statements, or in any other financial record that is required to be produced by the Company pursuant to this Agreement.
(8) The Company has not been and is presently not currently required to file any returns, reports, elections, designations or other filings with any taxation authority located in progress, any jurisdiction outside Canada or outside the Province of Quebec.
(9) The Company has not filed nor has been party to any election pursuant to Sections 83 or 85 of the Income Tax Act (Canada) (the "ITA") or the corresponding provisions of any provincial statute.
(10) The Company has not at any time benefited from a forgiveness of debt or entered into any transaction or arrangement (including conversion of debt into shares of its share capital) which could have resulted in the application of Section 80 and following of the ITA.
(11) All research and development investment tax credits ("ITCs") and expenditures were claimed by the Company been notified in writing accordance with the ITA and the relevant provincial legislation and the Company satisfied at all times the relevant criteria and conditions entitling it to such ITCs and expenditures. All refunds of ITCs received or receivable by the Company in any request for financial year were claimed in accordance with the ITA and the relevant provincial legislation and the Company satisfied at all times the relevant criteria and conditions entitling it to claim a refund of such an audit or other examination. No adjustment relating to any Return filed by ITCs.
(12) Since its date of incorporation, the Company has been proposed in writing by any tax authority to a "Canadian controlled private corporation" within the Company or any representative thereofmeaning of the ITA.
(v13) The Except as set forth in Schedule 2.01(x)(ii)(13), the Company had no material liabilities for unpaid Taxes as is not, nor has it been at any time, associated (within the meaning of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred ITA) with any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Businesscorporation.
(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, 2002.
(vii14) There are (and immediately following the Effective Time Closing there will be) no liens, pledges, hypothecs, 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.
(viii15) As of the Closing, there will not be any contract, agreement, plan or arrangement, including, but not limited to, the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an expense under applicable Law other than reimbursements of a reasonable amount of entertainment expenses and other non deductible expenses that are commonly paid by similar businesses in reasonable amounts.
(16) The Company's tax basis in its assets (and the undepreciated capital cost of such assets) for purposes of determining its future amortization, depreciation and other Federal income Tax deductions is accurately reflected on the Company's Tax Returns and records.
(17) The Company has (a) never been not acquired property or services from, nor has it disposed of property or provided services to a member of an affiliated group person with whom it does not deal at arm's length (within the meaning of Code §1504(a)the ITA) filing a consolidated federal income Tax Return (for an amount that is other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent fair market value of which was Company)such property or services, (b) never or has been a party deemed to have done so for purposes of the ITA. The Company does not have outstanding loans or other advances to the Shareholders or any officer, director or other employee of the Company or to any tax sharing, indemnification entity in which the Shareholders or allocation agreement, nor does the Company owe any amount under any such agreement, has a direct or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwiseindirect interest.
(ix18) The Company Each of the Shareholders individually represents and warrants as to himself or itself that such Shareholder is not and has not been, at any time, a "United States Real Property Holding Corporation" non-resident of Canada within the meaning of Section 897(c)(2) of the CodeITA.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has as of the Effective Time will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of Company's incorporation.
(vii) There are (and as of immediately following the Effective Time 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 payableTaxes.
(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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax- exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G, 404 or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the Company's tax books and records.
(xv) The Company (A) has not been a member of any affiliated group within the meaning of Code Section 1504 or any similar group defined under a similar provision of state, local, or foreign law filing a consolidated federal Income Tax Return (other than a group the common parent of which was the Company) and (B) has no liability for the taxes of any Person (other than any of the 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.
(xvi) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xii) The Company has not engaged in the two years prior to the date of this Agreement or (ii) 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 distribution which could otherwise constitute part 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 plan" or "series of related 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 material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) that includes the Merger.
Appears in 1 contract
Tax Returns and Audits. (i) The Company 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 concerning or attributable to the Company or its operations. All Taxes required to have been paid be filed by the Company (whether or Company, except such Returns which are not material to the Company, and has paid all Taxes shown to be due on any Tax Return) have been paidsuch Returns. All such Returns are true, correct and complete in all material respects.
(ii) The Company has as of the Closing Date will have withheld and paid all Taxes required to be paid and has withheld or paid over, as appropriate, with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate, state and local and/or foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidTaxes.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. The Company has not received a request for or an inquiry regarding a Return from any jurisdiction where it does not currently file a Return.
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereofthereof and, to the knowledge of the Company, no basis exists for any such adjustment which would be material to the Company.
(vvi) The Company had no material liabilities does not have any liability for unpaid Taxes as of the date of the Closing Balance Sheet which have has not been accrued for or reserved on the Closing Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, and the Company has not incurred any liability for Taxes other than in the ordinary course of business since the date of the Closing Company 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 Sheet. There is no lien for the Company filed for all periods since December 31, 2002.
(vii) There 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") Taxes on the assets of the Company relating to or attributable to Taxes other than Liens inchoate liens for Taxes not yet due and payabledue.
(vii) No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes payable by the Company.
(viii) The Company has (a) never been a member of an a consolidated, combined or affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been or is a party to or affected by any tax sharing, indemnification tax-sharing or allocation agreement, nor does the Company owe any amount under any such agreement, agreement or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company has no (A) any Tax exemption, Tax holiday or other Tax-sharing arrangement that the Company has in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or other Tax-sharing arrangement and (B) any expatriate tax programs or policies affecting the Company. The Company is not in full compliance with all terms and has not beenconditions of any Tax exemption, at Tax holiday or other Tax-sharing arrangement or order of any time, a "United States Real Property Holding Corporation" within Governmental Entity and the meaning of Section 897(c)(2) consummation of the Codetransactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sparing arrangement or order.
(x) The Company has is not constituted either a "distributing corporation" party to or a "controlled corporation" otherwise subject to any arrangement entered into in a distribution of stock intended to qualify for tax free treatment under Section 355 anticipation of the CodeClosing, not in accordance with past practice and not required by this Agreement, that could reasonably be expected to have the effect of (i) the recognition of a deduction or loss before the Closing Date and a corresponding recognition of taxable income or gain by the Company after the Closing Date or (ii) the recognition of taxable income or gain by the Company after the Closing Date without the receipt of or entitlement to a corresponding amount of cash.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) No Closing agreement, written ruling, or determination letter with respect to Taxes, or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service equivalent written decision from a foreign jurisdiction, has determined to be a tax avoidance transaction been received from, and identified by notice, regulation, no Closing or other form of published guidance as a "listed transaction"similar agreement has been executed with, as set forth in Treas. Reg. § 1.6011-4(b)(2)any Tax or other governmental authority that will be binding upon the Company after the Closing.
(xii) The Company will not be required has properly withheld on all amounts paid to include any material income Persons located or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 incorporated outside of the CodeUnited States and have paid the appropriate amounts withheld to the proper governmental authorities.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has as of the Closing will have prepared and timely filed all required federal, state, local and foreign tax returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to , and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing: (A) will have paid all Taxes it is required to be paid pay and has will have withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federalincome taxes, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paid.withheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods covered by the Current Balance Sheet and will not have incurred any liability for Taxes for the period prior to the Closing other than in the ordinary course of business. C&C VISION, INC STOCK ACQUISITION AGREEMENT
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent the Purchaser or its legal counsel counsel, copies of all Tax Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There are (and immediately following the Effective Time 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.
(viii) Neither the Company nor any Shareholder 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 the Company.
(ix) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The No adjustment relating to any Return filed by the Company has not constituted either a "distributing corporation" been proposed formally or a "controlled corporation" in a distribution of stock intended informally by any tax authority to qualify for tax free treatment under Section 355 of the CodeCompany or any representative thereof.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that is files its income Tax Returns on 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)accrual basis.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company Company, or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue as shown on the Returns and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with USGAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002years as to which any applicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances Liens of any sort (collectively, "Liens") on the assets of the Company the relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viii) The Company has Shareholders have 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 any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company's tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has prepared and 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 have been paid be filed by the Company (whether or Company, except such Returns which are not material to the Company, and have paid all Taxes shown to be due on any Tax Return) have been paidsuch Returns. All such Returns are true, correct and complete in all material respects.
(ii) The Company has as of the Effective Time will have withheld and paid all Taxes required to be paid and has withheld or paid over, as appropriate, with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts state, local and/or foreign income taxes, Taxes pursuant to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution ActAct ("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. The Company has not received a request for or an inquiry regarding a Return from any jurisdiction where it does not currently file a Return.
(v) No adjustment relating to any Return Returns filed by the Company has been proposed in writing formally or informally by any tax Tax authority to the Company or any representative thereofthereof and, to the knowledge of the Company, no basis exists for any such adjustment which would be material to the Company.
(vvi) The Company had no material liabilities does not have any liability for unpaid Taxes as of the date of the Closing Balance Sheet which have has not been accrued for or reserved on the Closing Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to the Company, and the Company has not incurred any liability for Taxes other than in the ordinary course of business since the date of the Closing Company 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 Sheet. There is no lien for the Company filed for all periods since December 31, 2002.
(vii) There 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") Taxes on the assets of the Company relating to or attributable to Taxes other than Liens inchoate liens for Taxes not yet due and payabledue.
(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) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)There is no contract, (b) never been a party to any tax sharing, indemnification or allocation agreement, nor does plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company owe that, individually or collectively, could give rise to the payment of any amount under any such agreementthat would not be deductible pursuant to Sections 162, 280G or (c) no liability for 404 of the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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 otherwiseCode.
(ix) 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.
(x) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction No power of attorney that is currently in force has been granted with respect to any matter relating to Taxes payable by 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)Company.
(xii) The Company will not be required has never been a member of a consolidated, combined or affiliated group or is a party to include or affected by any material income tax-sharing or material gain allocation agreement or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codearrangement.
(xiii) No holder The Company Schedules list (A) any Tax exemption, Tax holiday or other Tax-sparing arrangement that the Company has in any jurisdiction, including the nature, amount and lengths of such Tax exemption, Tax holiday or other Tax-sparing arrangement and (B) any expatriate tax programs or policies affecting the Company. The Company Common Stock holds shares is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax-sparing arrangement or order of any Governmental Entity and the consummation of the transactions contemplated hereby will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax-sparing arrangement or order.
(xiv) The Company Common Stock that are non-transferable and is not a party to or otherwise subject to any arrangement entered into in anticipation of the Closing, not in accordance with past practice and not required by this Agreement, that could reasonably be expected to have the effect of (i) the recognition of a substantial risk deduction or loss before the Closing Date and a corresponding recognition of forfeiture within taxable income or gain by the meaning Company after the Closing Date or (ii) the recognition of taxable income or gain by the Company after the Closing Date without the receipt of or entitlement to a corresponding amount of cash.
(xv) Except as set forth in Schedule 2.7(b)(xv), no closing agreement, written ruling, or determination letter with respect to Taxes, or any equivalent written decision from a foreign jurisdiction, has been received from, and no closing or other similar agreement has been executed with, any Tax or other governmental authority that will be binding upon the Company after the Closing.
(xvi) The Company has properly withheld on all amounts paid to Persons located or incorporated outside of the United States and have paid the appropriate amounts withheld to the proper governmental authorities.
(xvii) The Company has not been a party to a transaction intended to qualify under Section 83 355 of the Code with respect to which a valid election under Section 83(b(whether as distributing or distributed company) of within the Code has not been madelast five years.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.8: ----------------------
(i) The Company has as of the Effective Time will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") otherwise due ------- relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to , and such Returns have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company is not currently delinquent in the payment of any Tax and has not been delinquent in the payment of any Tax during the three (3) years preceding the date of this Agreement nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31January 1, 20021994.
(vii) There are (and as of immediately following the Effective Time 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 Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company has (a) never been a member None of an affiliated group (the Company's assets is treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(ix) Immediately prior to the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(x) Schedule 2.8 contains, which representation and warranty is limited to the Actual Knowledge of the Company for purposes of Article VIII, an accurate and complete descriptions of Company's basis in its assets, its current and accumulated earnings and profits, its tax carryovers and its tax elections which representation and warranty is deemed complied with for purposes of Article VIII except to the extent the Company has failed to disclose relevant information to the Parent. Schedule 2.8 contains, which representation and warranty is limited to the Actual Knowledge of the Company for purposes of Article VIII, a list of net operating losses or other tax attributes subject, immediately prior to the Effective Time, to limitation under Sections 269, 382, 383 or 384 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Level 8 Systems)
Tax Returns and Audits. (i) The Company has prepared and timely filed all required federal, state, local and foreign returns, estimatesinformation statements, information statements reports, tax slips, forms, declarations and reports other documents ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes operations or relating to any remuneration, commission or benefit granted to any stockholder, director employee or any other person that are required to be filed and such Returns are true and correct in all respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable Law.
(ii) The Company Company: (A) has paid in a timely manner to the appropriate Tax authorities all Taxes it is required to be paid pay, except for such Taxes the amount of which is subject to litigation with the applicable tax authorities and has been disclosed in Schedule 1.7, (B) has withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all Belgian federal, state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld and has paid all such taxes to the proper governmental agencies to the extent such Taxes are due, and (C) has made adequate provisions for Taxes not yet due and payable (to the extent that such provisions need to be made pursuant to GAAP) and attributable to all periods, including portions thereof, ending on or paidbefore the date of this Agreement or the Closing Date.
(iii) No There is no Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company discussed or executed any waiver waiver, or agreement with respect to any waiver, of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the Knowledge of the Class A Stockholders and the employees, accountants and consultants of Company involved in Tax matters, no audit or other examination of any Return of the Company is presently currently in progress, nor has the Company been notified in writing of any request for for, or informed by any Tax authorities that they intend to conduct, such an audit or other examination. No adjustment relating to of any Return filed Tax has been assessed by any Tax authorities, and the Company has been proposed is not aware of any factual basis upon which an audit or examination could be based that would result in writing by any tax authority to the Company an additional assessment or any representative thereofTax adjustment.
(v) The Company had no material liabilities has provided or made available to Parent copies of all federal, state and foreign income tax and VAT Tax Returns and assessment notices for unpaid Taxes as all periods for which the statute of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company limitations has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Businessyet lapsed.
(vi) The Company Belgian federal, state or local tax administration has made available to Parent or its legal counsel copies of all Tax Returns for the Company filed for all periods since December 31, 2002.
(vii) There 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 not exercised any sort (collectively, "Liens") Liens on the assets of the Company relating to or attributable to Taxes and there are no other than Liens for Taxes not yet due and payableon the assets of the Company attributable to Taxes.
(viiivii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been is not a party to any tax a Tax sharing, allocation or indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement.
(viii) No power of attorney (or similar authority) relating to Tax matters, Tax audits or (c) no liability Tax Returns has been granted with respect to the Company, except for the Taxes implied power of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision attorney of state, local or foreign law, including any arrangement the auditor of the Company for group filing Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwiseReturns.
(ix) The Company is not has complied with the provisions of the Belgian Income Tax Code relating to the withholding of Taxes (including maintenance of records), as well as similar provisions under any other Law, and has not beenhas, at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of time and in the Codemanner prescribed by Law, withheld and paid over to the proper Tax authority all such amounts required.
(x) The No relief (including by way of deduction, reduction, set-off, exemption or otherwise) from, against or in respect of any taxation or charge has been claimed by or given to the Company has not constituted either which could be withdrawn, postponed, restricted or otherwise lost as a "distributing corporation" result of any act, omission, event or circumstance arising or occurring at any time before the Closing or as a "controlled corporation" in a distribution result of stock intended to qualify for tax free treatment under Section 355 of the Codeentering into this Agreement.
(xi) The Company has not engaged No Tax authority in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that is jurisdiction where the same as or substantially similar Company does not file Tax Returns has asserted to one of the types of transactions Company that the Internal Revenue Service has determined to be a tax avoidance transaction and identified by notice, regulationCompany is, or other form of published guidance as a "listed transaction"may be, as set forth in Treas. Reg. § 1.6011-4(b)(2).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been madetaxation by such jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cypress Semiconductor Corp /De/)
Tax Returns and Audits. (i) The As of the Effective Time, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The As of the Effective Time, the Company has (A) will have timely paid all Taxes it is required to be paid pay and has withheld or paid with respect to its Employees employees all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld, and (B) will have accrued on the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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 (a) never been a member None of an affiliated group (the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(ix) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(4) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bx) never been The Company is not a party to any tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxi) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxii) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Knowledge of the Company and the Principal Shareholder, informally by any tax authority to the Company or any representative thereof.
(xiii) The Company has (a) never 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) no liability for the Taxes of any person (other than Company or any of its Subsidiaries) under 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 and (c) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xiv) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify qualifying for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two years prior to the date of this Agreement or (y) 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 distribution which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
Series of related transactions" (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lsi Logic Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.11 as of the Effective Time:
(i) The Company has and each Subsidiary will have timely prepared and filed all required material federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes of, concerning or attributable to the Company and its operations and each Subsidiary and its operations with respect to any Taxable period ending on or its operationsbefore the Effective Time. All Taxes required to have been paid by To the Company (knowledge of the Company, such Returns are true, correct and complete in all material respects. No material Taxes, whether or not shown on the Returns, will be owing after the Closing for any Tax period covered by any of the Returns. Neither the Company nor any of its Subsidiaries has applied for or received an extension of time within which to file any Return) have been paid. No tax authority has asserted in writing to the Company that the Company or any of its Subsidiaries is required to file a Return in any jurisdiction in which the Company has not previously filed Returns. For purposes of this Agreement, the "Company's knowledge," "knowledge of the Company" or "known to the Company" means the knowledge of the Chairman and Chief Executive Officer, the President and Chief Technology Officer, the Chief Financial Officer, any Vice President or any director of the Company, in each case after due inquiry and reasonable investigation.
(ii) The Company has and each of its Subsidiaries as of the Effective Time: (A) will have paid or accrued all material Taxes required to be paid shown as due and has payable on the Returns and (B) will have withheld and deposited, or paid will have made arrangements for withholding with respect to its Employees and other third parties (and amounts which have not yet been paid over any withheld amounts to but are due on or before the appropriate Taxing authority) Closing Date in connection with this Agreement or otherwise, all material federal, state and state, local or foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution ActFICA, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of the period for the assessment or collection of any Tax with continuing effect.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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, 2002.
(vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ligand Pharmaceuticals Inc)
Tax Returns and Audits. (i) The As of the Effective Time, the Company has will have prepared and timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required operations for all periods ending on or prior to the Closing Date, if such Returns are due on or before the Closing Date, taking into account any extensions to file, and all such returns, are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Except as set forth on Company has Schedule 2.9, as of the Effective Time, the Company (A) will have paid all Taxes it is required to be paid pay, whether asserted or unasserted, contingent or otherwise, and has withheld or paid will have withheld, with respect to its Employees employees, all federal and 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 feestaxes, Federal Insurance Contribution ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld on or paidbefore the Closing Date and has, within the time and in the manner required by law, withheld and paid to the proper governmental authorities, all amounts required to be paid on or before the Closing Date; and (B) will have accrued on the date of the Current Balance Sheet all Taxes attributable to the periods preceding the Current Balance Sheet and will not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and ending immediately prior to the Effective Time, other than in the ordinary course of business and as will be set forth on the Closing Date Balance Sheet.
(iii) No There is no Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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 counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since December 31, 2002its inception.
(viivi) There 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.
(vii) None of the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(viii) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (af) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(ix) Except as set forth on Company Schedule 2.9, the Company (A) has 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company)tax return, (bB) never been is not a party to any tax sharing, indemnification or allocation agreement, similar agreement nor does the Company owe any amount under any such agreement, or and (cC) no liability is not liable for the Taxes of any other person (other than Company) under Treas. Reg. § Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law, including any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee transferee, or successor, successor or by contract or agreement, or otherwise).
(ixx) The Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Company's tax books and records.
(xi) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(xxii) To the Knowledge of the Company, no adjustment relating to any Return filed by the Company has been proposed formally or informally by any tax authority to the Company or any representative thereof.
(xiii) The Company has not constituted either requested or received a "distributing corporation" ruling from any taxing authority or signed a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codewith any taxing authority.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Except as set forth in SECTION 2.10(b)(i) of the Disclosure Schedule, as of the Closing Date, the Company has and each of its Subsidiaries will have (a) prepared and timely filed (taking into account any extensions of time for filing) 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 any of its operations. All Subsidiaries or their respective operations and such Returns are or will be true and correct and (b) timely paid all Taxes it is required to have been paid by pay or accrued or reserved such Taxes on the Company (whether or not shown on any Tax Return) have been paidCurrent Balance Sheet in accordance with GAAP.
(ii) The Except as set forth in SECTION 2.10(b)(ii) of the Disclosure Schedule, as of the Closing Date, the Company has paid all Taxes required to be paid and has each of its Subsidiaries will have withheld or paid with respect to its Employees and 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 ActAct ("FICA"), Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld, and will have timely paid such taxes withheld or paidover to the appropriate authorities.
(iii) No Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, proposed against the Company, nor has Neither the Company nor any of its Subsidiaries has executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effect(other than an extension attributable to an extension of time for filing any tax returns).
(iv) No Except as set forth in SECTION 2.10(b)(iv) of the Disclosure Schedule, no audit or other examination of any Return of the Company or any of its Subsidiaries 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. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Neither the Company had no material nor any of its Subsidiaries has any liabilities for unpaid Taxes as of the date of the Closing Balance Sheet Date which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwiseSheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course ordinary course of Businessbusiness.
(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 31There are, 2002.
(vii) There 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") 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.
(vii) 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)(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 Subsidiaries.
(viii) The Neither the Company has nor any of its Subsidiaries (a) never has ever been a member of an affiliated group (within the meaning of Code §1504(aSection1504(a)) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never has ever been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no has any liability for the Taxes of any person (other than CompanyCompany or any of its Subsidiaries) under Treas. Reg. § Treasury Regulation Section 1.1502-6 (or any similar provision of state, 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 otherwiseotherwise and (d) is a party to any joint venture, partnership or other arrangement that is being treated as a partnership for Tax purposes.
(ix) The Neither the Company is not and nor any of its Subsidiaries has not been, at any time, a "United States Real Property Holding Corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Neither the Company nor any of its Subsidiaries has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
Code (xix) The Company has not engaged in the two (2) years prior to the date of this Agreement or (y) 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 distribution which could otherwise constitute part 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 transactionplan" or ", as set forth in Treas. Reg. § 1.6011-4(b)(2).
series of related transactions" (xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b355(e) of the Code has not been madeCode) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Documentum Inc)
Tax Returns and Audits. (i) The Company 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"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All operations and such Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes they are required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company has paid all Taxes required to be paid and has or withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all federal, state and foreign income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and all other Taxes required to be withheld or paid, and have timely paid any such Taxes withheld over to the appropriate authorities.
(iii) No The Company has no Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectthat remains outstanding.
(iv) No audit or other examination of any Return of the Company is presently in progressprogress by any Governmental Entity, nor has the Company been notified in writing by any Governmental Entity of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, the Company does not have any liabilities for unpaid Taxes which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax Returns for the Company filed for all periods since December 31, 2002inception.
(vii) There 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") Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payabledelinquent.
(viii) None of the Company’s assets is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) The Company has not (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never ever been a party to any tax Tax sharing, indemnification or allocation agreementagreement (other than, in each case, pursuant to agreements entered into in the ordinary course of business with vendors, lessors, customers and the like), nor does the Company owe any amount under any such agreement, or (c) no any liability for the Taxes of any person (other than Company) ), under Treas. Reg. § Treasury Regulation §1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group Tax or consortium relief within a jurisdiction or similar arrangementarrangements), as a transferee or successor, by contract or agreement, or otherwiseotherwise (other than, in each case, pursuant to agreements entered into in the ordinary course of business with vendors, lessors, customers and the like) and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ixx) 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.
(xxi) No adjustment relating to any Return filed by the Company has been proposed formally or, to the Knowledge of the Company, informally by any Tax authority to the Company or any representative thereof.
(xii) The Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code (x) in the two years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xixiii) The Company has not engaged in a "“reportable transaction," ” as set forth in Treas. Reg. § §1.6011-4(b) or ), including 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 Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "“listed transaction", ,” as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xiixiv) The Company is and has at all times been resident for Tax purposes in its country of incorporation or formation and is not and has not at any time been treated as resident in any other country for any Tax purpose (including any double taxation arrangement). The Company is not 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 or by virtue of having a source of income in that country, except for income earned from services for which any income Tax is satisfied through withholding. The Company is not liable for any Tax as the agent of any other person or business and does not constitute a permanent establishment or other place of business of any other person, business or enterprise for any Tax purpose.
(xv) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable taxable income as a result of any (a) change in method of accounting under Section 481(c) of the Code (other than any such change resulting from the Merger), (b) closing agreement under Section 7121 of the Code.
, (xiiic) 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 deferred intercompany gain or excess loss account under Treasury Regulations under Section 83 1502 of the Code with respect to which a valid election (or in each of items (a), (b), or (c), under Section 83(bany similar provision of applicable law), or (d) of the Code has not been madeinstallment sale or open transaction disposition.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.8: ----------------------
(i) The Company has prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the ------- Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company Company: (A) has paid or accrued all Taxes it is required to be paid pay or accrue and (B) has withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against in accordance with GAAP on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of Company's organization.
(vii) There 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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Code §1504(a)Section 168(h) filing a consolidated federal income Tax Return of the Code.
(other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group x) There are no contracts, agreements, plans or arrangements, including but not limited to the common parent provisions of which was Company)this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(bxi) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income is properly classified as a result of any closing agreement under Section 7121 of the Codepartnership for all tax purposes.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Smartforce Public LTD Co)
Tax Returns and Audits. (i) The Company has as of the Effective Time will have prepared and filed all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns were when so filed true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No To the Company's knowledge, there is no Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the Company's knowledge, no audit or other examination of any Return of the Company is presently in progressprogress as of the date of this Agreement, nor has the Company been notified in writing as of or prior to the date of this Agreement of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material knowledge of any basis for the assertion of any liabilities for unpaid federal, state, local or foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Balance Sheet, Sheet whether asserted or unasserted, contingent or otherwiseotherwise attributable to the Company, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course of Businessits assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since December 31, 2002the date of Company's incorporation.
(vii) There are (and as of immediately following the Effective Time 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 Taxes, other than Liens for statutory liens for Taxes not yet due and payabledue.
(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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement to which the Company is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.8, and except with respect to federal, state and local income Taxes of the Company relating to all Tax periods ending on or after July 1, 1999:
(i) The Company has as of the Effective Time will have prepared and filed on a timely basis, all required federal, state, local and foreign returns, estimates, information statements and reports due to be filed by the Company on or before the Effective Time ("ReturnsRETURNS") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to and such Returns are true, correct and complete and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue, and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company is not currently delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing February 29, 2000 Balance Sheet, Sheet whether asserted or unasserted, unasserted contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income Tax Returns for the Company filed for all periods since December 31fiscal years ended June 30, 20021999, 1998 and 1997.
(vii) There are (and immediately following the Effective Time there will be) were as of February 29, 2000 no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes that were 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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, will give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company has not constituted either a uses the cash method of accounting for income tax reporting purposes.
(xv) The assets to be transferred to Merger Sub in the Merger constitute "distributing corporationsubstantially all" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under the assets of the Company within the meaning of Section 355 368(a)(2)(D) of the Code.
(xixvi) The Company has not engaged in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) Neither Company, its Board of Directors, officers, employees or shareholders have any transaction plan or intention to undertake any action that is would jeopardize the same as or substantially similar to one treatment 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 Merger as a "listed transaction", as set forth in Treas. Reg. § 1.6011-4(b)(2reorganization for federal income tax purposes under Section 368(a)(1)(A) and Section 368(a)(2)(D).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (New Era of Networks Inc)
Tax Returns and Audits. (i) The Except as set forth in Section 3.11(b) of the Disclosure Schedule, the Company has (a) prepared and timely filed all required federal, state, provincial, local and foreign returns, estimates, information statements statements, elections, forms, transfer pricing studies and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct and have been paid by the Company completed in accordance with applicable law and (whether or not shown on any Tax Returnb) have been paid.
(ii) The Company has timely paid all Taxes required to be paid, whether or not shown to be due on such Returns.
(ii) Except as set forth in Section 3.11(b) of the Disclosure Schedule, the Company has paid and has or withheld or paid with respect to its Employees employees and other third parties (and paid over from any withheld amounts to the appropriate Taxing authority) related Person, all federal, state state, provincial and foreign income taxes Taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld paid or paidwithheld, and have timely paid such Taxes over to the appropriate authorities.
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No To the Company’s knowledge, no audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the The Company has not been proposed in writing by notified of any tax authority to the Company such audit or any representative thereofother examination.
(v) The Company had no material does not have any liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet Date other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There 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") Liens on the 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 any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company.
(viii) None of the Company’s assets are treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or agreement and (c) no liability for the Taxes of any person (other than Company) ), under Treas. Reg. Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise.
(ixx) The Company’s tax basis in its assets for purposes of determining its future amortization, depreciation and other income Tax deductions is accurately reflected on the Company’s 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.
(xxii) No adjustment relating to any Return filed by the Company has been proposed formally or, to the knowledge of the Company, informally by any Tax authority to the Company or any representative thereof.
(xiii) No claim has ever been made by an authority in a jurisdiction where the Company does not file Returns that it is or may be subject to taxation by that jurisdiction.
(xiv) The Company has not constituted either a "“distributing corporation" ” or a "“controlled corporation" ” in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xixv) The Company has not engaged in a "“reportable transaction," ” as set forth in Treas. Reg. § Treasury Regulation Section 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 Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a "listed transaction", as set forth in Treas. Reg. § Treasury Regulation Section 1.6011-4(b)(2).
(xiixvi) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable taxable income as a result of (a) any change in method of accounting prior to the Merger under Section 481(c) of the Code, closing agreement under Section 7121 of the Code executed prior to the Merger, deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or in each case, under any similar provision of applicable law) with repsect to transactions prior to the Merger, (b) installment sale or open transaction disposition undertaken prior to the Merger or (c) prepaid amount paid prior to the Merger.
(xvii) There currently are no limitations on the utilization of the net operating losses, built-in losses, capital losses, tax credits or other similar items of the Company under (i) Section 382 of the Code, (ii) Section 383 of the Code, (iii) Section 384 of the Code, (iv) Section 269 of the Code or (v) the Treasury Regulations under Section 1502 of the Code.
(xiiixviii) No holder The Company has provided to Parent all documentation relating to, and is in full 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 with respect to the Company. 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 exemption, Tax holiday, or other Tax reduction agreement or order.
(xix) The Company Common Stock has in its possession official foreign receipts for any Taxes paid to it by any foreign Tax authorities.
(xx) Except as set forth in Section 3.11(b)(xx) of the Disclosure Schedule, no Company Stockholder holds shares of Company Common Capital Stock that are non-transferable and subject to a substantial risk of forfeiture within the meaning of Section 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made. No payment to any Company Stockholder of any portion of the consideration payable pursuant to this Agreement will result in compensation or other income to such Company Stockholder with respect to which Parent, the Company or any subsidiary of Parent or the Company would be required to deduct or withhold any taxes.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Supergen Inc)
Tax Returns and Audits. (i) The Company has prepared and timely filed all required material 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 have been paid be filed by the Company (whether or not shown on with any Tax Return) authority. Such Returns are true and correct in all material respects and have been paidcompleted in accordance with applicable law. The Company has paid all Taxes that are shown to be due and payable on such Returns, except for such Taxes which are being contested in good faith and for which it has provided adequate reserves. True and correct copies of all such Returns for the four fiscal years prior to the date of this Agreement have been provided or made available to Parent.
(ii) The Company has paid all Taxes required to be paid and has withheld or paid with respect to its Employees and other third parties employees (and timely paid over any withheld amounts to the appropriate Taxing authority) all federalfederal and state income taxes, state and foreign income taxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution Act, Act ("FICA") and the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be withheld or paidwithheld, except such Taxes that are not material to the Company.
(iii) No The Company has not been delinquent in the payment of any material Tax nor is there any material Tax deficiency is or adjustment outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the CompanyCompany (except for such Taxes which are being contested in good faith and for which it has provided adequate reserves), nor has the Company executed any unexpired waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectmaterial Tax.
(iv) No audit or other examination of any material Return of the Company by any Tax authority is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no did not have, as of December 31, 2003, any liability for any material liabilities for unpaid Taxes as of the date of the Closing Balance Sheet which have that has not been accrued for or reserved against on the Closing Company Balance SheetSheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes 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, 2002.
(vii) There 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 (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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.or
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Virologic Inc)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all required federal, state, local domestic 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 , or has lawfully obtained extensions for such filings, and such Returns are or will be true and correct and have been or will be completed in accordance with applicable law and (b) timely paid all Taxes it is required to have been paid by the Company (whether or not shown on any Tax Return) have been paidpay.
(ii) The Company has paid all Taxes required to be paid and has or withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) parties, all federal, state domestic and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be paid or withheld, and has timely paid such Taxes withheld or paidover to the appropriate authorities (including for all purposes under this Agreement the Investment Center with respect to the Company's status as an "Approved Enterprise" under Israel's Law for the Encouragement of Capital Investment, 1959).
(iii) No The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing formally or, to the Knowledge of the Company, informally by any tax Tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Current Balance Sheet Sheet, the Company had no liabilities for unpaid Taxes which have not been accrued or reserved on the Closing Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the date of the Closing Current Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made available to Parent or its legal counsel counsel, copies of all Tax Returns for the Company filed for all periods since December 31, 2002its inception.
(vii) There are (and immediately following as a result of the Effective Time Merger there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") Liens on the assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable. 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.
(viii) The Company has (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been a party to any tax Tax sharing, indemnification indemnification, allocation or allocation similar agreement, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § Treasury Regulation Section 1.1502-6 (or any similar provision of state, local domestic or foreign law, including law or any arrangement for group Tax relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwiseotherwise 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax tax-free treatment under Section 355 of the Code.
(xi) The Company has not 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. § Section 1.6011-4(b)(2).
(xii) The Company qualifies as an Industrial Company according to the meaning of that term in the Law for the Encouragement of Industry (Taxes), 1969. The consummation of the Merger will not have any adverse effect on such qualification as an Industrial Company.
(xiii) The Company and each of its subsidiaries are in compliance in all material respects with all terms and conditions of any Tax exemptions, Tax holiday or other Tax reduction agreement, approval or order of any government and, subject to receipt of the Investment Center Approvals and the other Approvals required herein, the consummation of the Merger will not have any adverse effect on the validity and effectiveness of any such Tax exemptions, Tax holiday or other Tax reduction agreement or order.
(xiv) The Disclosure Schedule lists each material tax incentive granted to or enjoyed by the Company and its subsidiaries under the laws of the State of Israel, the period for which such tax incentive applies, and the nature of such tax incentive. The Company and its subsidiaries have complied with all material requirements of Israeli law to be entitled to claim all such incentives. Subject to receipt of the Investment Center Approval, consummation of the Merger will not adversely affect the continued qualification for the incentives or the terms or duration thereof or require any recapture of any previously claimed incentive, and no consent or approval of any Governmental Entity is required, other than as set forth on SECTION 2.9(b)(xiv) of the Disclosure Schedule, prior to the consummation of the Merger in order to preserve the entitlement of the Surviving Corporation or its subsidiaries to any such incentive.
(xv) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of (a) any change in method of accounting under Section 481(c) of the Code, (b) closing agreement under Section 7121 of the Code, (3) deferred intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (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 or (e) prepaid amount.
(xiiixvi) No holder The Company is and has at all times been resident for Tax purposes in its place of incorporation or formation and is not and has not at any time been treated as resident in any other jurisdiction for any Tax purpose (including any Tax treaty or other arrangement for the avoidance of double taxation). The Company Common Stock holds shares of Company Common Stock that are non-transferable and is not subject to Tax in any jurisdiction other than its place of incorporation or formation by virtue of having a substantial risk permanent establishment or other place of forfeiture within business or by virtue of having a source of income in that jurisdiction, except for income earned from services for which any income tax is satisfied through withholding. The Company is not liable for any Tax as the meaning agent of Section 83 any other person or business and does not constitute a permanent establishment or other place of business of any other person, business or enterprise for any Tax purpose.
(xvii) SECTION 2.9(xvii) of the Code Disclosure Schedule sets forth the following information with respect to which a valid election under Section 83(bthe Company: (a) the basis of the Code Company in its assets; (b) the amount of any net operating loss, net capital loss, unused investment Tax credit or other Tax credit and the amount of any limitation upon any of the foregoing; and (c) the amount of any deferred gain or loss allocable to the Company arising out of any deferred intercompany transaction as defined in Treas. Reg. Section 1.1502-13 or any similar provision of applicable law.
(xviii) There has not been madeno indication from any Tax authority that the consummation of the Merger would adversely affect the Surviving Corporation's ability to set off for tax purposes in the future any and all losses accumulated by Company as of the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (Scansoft Inc)
Tax Returns and Audits. Except as set forth in Section 5.13 of the Disclosure Schedule:
(i) The As of the Closing, the Company has prepared and will have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports ("“Returns"”) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true and correct in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in all material respects in accordance with applicable law.
(ii) The As of the Closing, the Company has (A) will have paid all Taxes required to be paid shown on the Returns and has will have withheld or paid with respect to its Employees employees and other third parties (contract workers all federal and paid over any withheld amounts to the appropriate Taxing authority) all federal, state and foreign income taxes and social security charges and similar feestaxes, Federal Insurance Contribution ActAct (“FICA”), Federal Unemployment Tax Act (“FUTA”) and other Taxes required to be withheld or paidwithheld, and (B) will have accrued on the Financial Statements all unpaid Taxes attributable to the periods preceding the Balance Sheet Date and will not have incurred any liability for Taxes for the period commencing on the Balance Sheet Date and ending immediately prior to the Closing other than in the ordinary course of business.
(iii) No The Company has not been materially delinquent in the payment of any Tax, nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the CompanyCompany attributable to periods preceding the Balance Sheet Date, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing Tax, which waiver remains in effect.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities Liabilities for unpaid federal, state, local and foreign Taxes as of attributable to periods preceding the date of the Closing Balance Sheet Date which have not been accrued or reserved on the Closing Balance SheetFinancial Statements, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability Liability for Taxes since the date of the Closing Balance Sheet Financial Statements other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has made or will make available to Parent Purchaser or its legal counsel counsel, copies of all Tax foreign, federal, state and local income and all state and local sales and use Returns for the Company filed for all periods since the taxable year ended December 31, 20021999.
(vii) There are (and immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") material Liens on the assets of the Company relating to or attributable to Taxes (collectively, “Tax Liens”) other than Tax Liens for Taxes not yet due and payable.
(viii) The Company and the Seller 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes Knowledge of any person (other than assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any material Tax Lien on the assets of the Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) The Company is not a party to any Tax sharing, indemnification or allocation agreement nor does Company owe any amount under any such agreement.
(x) The Company is not, and has not been, been at any timetime during the period specified in Section 897(c)(1)(A)(ii), a "“United States Real Property Holding Corporation" ” within the meaning of Section 897(c)(2) of the Code.
(xxi) The No adjustment relating to any Return filed by the Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution been proposed formally or, to the Knowledge of stock intended Company and the Seller, informally by any Tax authority to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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)representative thereof.
(xii) The Company will has withheld or collected from each payment made to each of its employees the amount of all Taxes, including, but not be limited to, income Taxes, and all other employment related Taxes required to include any material income be withheld or material gain collected therefrom, and has made provision for or exclude any material deduction paid the same to the proper Tax receiving officers or material loss from Taxable income as a result of any closing agreement under Section 7121 of the Codeauthorized depositaries.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has as of the Closing Date will have prepared and timely filed or made a timely request for extension for all required federal, state, local and foreign returns, estimates, information statements and reports ("Returns") Returns relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations since the Merger, and such Returns are true and correct and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid and timely remitted with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) employees all federal, state and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidand remitted.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, assessed or, to the Knowledge of the Company, or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Company, is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had has no material liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available to Parent Xxxxxxx or its her legal counsel counsel, copies of all Tax foreign, federal and state income and all state sales and use Returns for the Company filed for all periods since December 31, 2002the date of Company’s incorporation.
(vii) There are (and immediately following the Effective Time there will be) is no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances Encumbrance of any sort (collectively, "Liens") on the assets of the Company the relating to or attributable to Taxes other than Liens for Taxes 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 Encumbrance on any material assets of the Company.
(aix) never been a member As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company as an affiliated group expense under Sections 162, 280G or 404 of the Code.
(within the meaning of Code §1504(a)x) filing a consolidated federal income Tax Return (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Company), (b) never been The Company is not a party to any a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not engaged uses the accrual method of accounting for income tax purposes and its tax basis in a "reportable transaction," as set forth in Treas. Reg. § 1.6011-4(b) or any transaction that its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is accurately reflected on the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Company’s tax avoidance transaction books 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)records.
(xii) The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income qualifies as a result of any closing agreement under Section 7121 of the Codecorporation for all federal and state income tax purposes.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Stock Purchase Agreement (MCF Corp)
Tax Returns and Audits. Except as set forth in Schedule 2(a)(xvii) hereto:
(i) The Company has prepared and Affiliated Companies have timely filed all required federal, state, local and foreign returns, estimates, information statements and reports relating to Taxes ("Returns") relating required to be filed by the Affiliated Companies with any Tax authority prior to the date hereof. All such Returns are true, correct and complete in all material respects. The Affiliated Companies have paid all Taxes concerning or attributable shown to the Company or its operations. All Taxes required to have been paid by the Company (whether or not shown be due on any Tax Return) have been paidsuch Returns.
(ii) The Company has paid all All Taxes that the Affiliated Companies are required by law to be paid and has withhold or collect have been duly withheld or paid with respect to its Employees collected, and other third parties (and have been timely paid over any withheld amounts to the appropriate Taxing authority) all federal, state proper governmental authorities to the extent due and foreign income taxes and social security charges and similar fees, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other Taxes required to be withheld or paidpayable.
(iii) No The Affiliated Companies have not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the CompanyAffiliated Companies, nor has have the Company Affiliated Companies executed any unexpired waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company Affiliated Companies by any Tax authority is presently in progress, nor has have the Company Affiliated Companies been notified in writing of any request for such an audit or other examination. .
(v) No adjustment relating to any Return Returns filed by the Company Affiliated Companies has been proposed in writing writing, formally or informally, by any tax Tax authority to the Company Affiliated Companies or any representative thereof.
(vvi) The Company had Affiliated Companies have no material liabilities liability for any unpaid Taxes as of the date of the Closing Balance Sheet which have not been accrued for or reserved on Ever Leader's balance sheets included in the Closing Balance SheetU.S. GAAP Financial Statements for the most recent fiscal year ended, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred other than any liability for unpaid Taxes that may have accrued since the date end of the Closing Balance Sheet other than most recent fiscal year in connection with the operation of the business of the Affiliated Companies in the Ordinary Course ordinary course of Business.
(vi) The Company has made available business, none of which is material to Parent the business, results of operations or its legal counsel copies of all Tax Returns for the Company filed for all periods since December 31, 2002.
(vii) There 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 financial condition of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payableAffiliated Companies.
(viii) 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES 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 owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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) 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.
(x) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xi) The Company has not 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).
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Placement Agreement (Applied Spectrum Technologies Inc)
Tax Returns and Audits. (i) The Company has prepared and filed on a timely basis, all required federal, state, local and foreign returns, estimates, information statements and reports ("ReturnsRETURNS") due to be filed (taking into account any extension of such due date) relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true, correct and complete in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law, in all material respects.
(ii) The Company Company: (a) has timely paid all Taxes it is required to be paid pay, and (b) has withheld or paid with respect to its Employees and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) Tax authorities all federalfederal and state income taxes, state and foreign income taxes 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 or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax claimed to be due and payable by any taxing authority nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing which waiver or extension is still in effect.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material liabilities for unpaid Taxes as As of the date of the Closing Balance Sheet Sheet, the Company did not have any liabilities for unpaid Taxes which have had not been accrued or reserved against on the Closing Balance Sheet, whether asserted or unasserted, unasserted contingent or otherwise, and the Company has no knowledge of any basis for the assertion of any such liability attributable to the Company, its assets or operations. Since the date of the Balance Sheet, the Company has not incurred any liability for Taxes since the date of the Closing Balance Sheet other than in the Ordinary Course ordinary course of Businessbusiness.
(vi) The Company has provided or made available to Parent or its legal counsel copies of all Tax Returns for the Company filed for all periods since December 31, 2002as requested by Parent.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable. 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.
(viii) As of the Closing, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or other person that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G or 404 or 162(m) of the Code.
(ix) 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.
(x) No adjustment relating to any Returns filed by the Company has been proposed, formally or informally, by any Tax authority to the Company.
(xi) No claim has ever been made by an authority in a jurisdiction where the Company does not file Returns that it is or may be subject to taxation by that jurisdiction.
(xii) The Company has (a) never 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 [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group the common parent of which was Companythe Company ), (b) never been a party to any tax Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Companythe Company or any of its Subsidiaries) under Treas. Reg. § Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law, law and including any arrangement for group Tax or consortium relief within a jurisdiction (or similar arrangement)), as a transferee or successor, by contract or agreementcontract, or otherwiseotherwise and (d) never been a party to any joint venture, partnership or, to the knowledge of the Company, other agreement that could be treated as a partnership for Tax purposes.
(ix) 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.
(xxiii) The Company has not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax free treatment under Section 355 of the Code.
(xixiv) The Company has not engaged in a "reportable transaction," as set forth in within the meaning of Treas. Reg. § Section 1.6011-4(b) 4 or any 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 Treas. Reg. § Section 1.6011-4(b)(24(b).
(xiixv) The Company uses the accrual method of accounting for income Tax purposes. The Company will not be required to include any material income or material gain or exclude any material deduction or material loss from Taxable income as a result of (a) any change in method of accounting under Section 481(c) of the Code, closing agreement under Section 7121 of the CodeCode (or similar provision of applicable law), (b) installment sale or open transaction disposition or (c) prepaid amount.
(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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract
Samples: Merger Agreement (Taleo Corp)
Tax Returns and Audits. Except as set forth in SCHEDULE 2.8:
(i) The Company has as of the Effective Time will have prepared and filed on a timely basis, all required federal, state, local and foreign returns, estimates, information statements and reports due to be filed on or before the Effective Time ("ReturnsRETURNS") relating to any and all Taxes concerning or attributable to the Company or its operations. All Taxes required to operations and such Returns are true, correct and complete in all material respects and have been paid by the Company (whether or not shown on any Tax Return) have been paidcompleted in accordance with applicable law.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to be paid pay or accrue and has (B) will have withheld or paid with respect to its Employees employees all federal and other third parties (and paid over any withheld amounts to the appropriate Taxing authority) all federalstate income taxes, state and foreign income taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act, Federal Unemployment Tax Act FUTA and other Taxes required to be withheld or paidwithheld.
(iii) No The Company has not been delinquent in the payment of any Tax nor is there any Tax deficiency is outstanding, proposed or assessed or, to the Knowledge of the Company, proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extension of extending the period for the assessment or collection of any Tax with continuing effectTax.
(iv) No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination. No adjustment relating to any Return filed by the Company has been proposed in writing by any tax authority to the Company or any representative thereof.
(v) The Company had no material does not have any liabilities for unpaid federal, state, local and foreign Taxes as of the date of the Closing Balance Sheet which have not been accrued or reserved against on the Closing September Balance Sheet, Sheet whether asserted or unasserted, unasserted contingent or otherwise, and the Company has not incurred no knowledge of any basis for the assertion of any such liability for Taxes since attributable to the date of the Closing Balance Sheet other than in the Ordinary Course of BusinessCompany, its assets or operations.
(vi) The Company has made available provided to Parent or its legal counsel copies of all federal and state income and all state sales and use Tax Returns for the Company filed for all periods since through its fiscal year ended December 31, 20021998.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "LiensLIENS") on the assets of the Company relating to or attributable to Taxes 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.
(aix) never been a member None of an affiliated group (the Company's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Effective Time, there will not be any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 162 or 404 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code §1504(a)or agreed to have Section 341(f)(2) filing of the Code apply to any disposition of a consolidated federal income Tax Return subsection (other than a [+] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED FOR CONFIDENTIALITY PURPOSES group f) asset (as defined in Section 341(f)(4) of the common parent of which was Code) owned by the Company), .
(bxii) never been The Company is not a party to any a tax sharing, indemnification sharing or allocation agreement, agreement nor does the Company owe any amount under any such agreement, or (c) no liability for the Taxes of any person (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, 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.
(ixxiii) The Company is not not, and has not been, been at any time, a "United States Real Property Holding Corporationreal property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(xxiv) The Company has files its income tax returns on the accrual method of accounting and the Company's aggregate tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is not constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for materially inconsistent with the amounts reported on the Company's federal income tax free treatment under Section 355 of the Code.
(xi) The Company has not 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 noticereturns, regulation, or other form of published guidance taken as a "listed transaction", as set forth in Treas. Reg. § 1.6011-4(b)(2)whole.
(xii) The Company will not be required to include any material income or material gain or 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 83 of the Code with respect to which a valid election under Section 83(b) of the Code has not been made.
Appears in 1 contract