Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to pay. (ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date. (iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax. (iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company. (v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business. (vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years. (vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable. (viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code. (ix) 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. (x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2). (xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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. (xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date. (xiii) The Company uses the cash method of accounting for income Tax purposes. (xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive. (xv) 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 in that country. (xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has and each of its Subsidiaries have (a) prepared and timely filed filed, or will timely file, all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or and each of its operations, Subsidiaries and such Tax Returns are are, or will be when filed, true and correct in all material respects and have been or will be completed in accordance with applicable law and (b) timely paid all Taxes it is they are required to paypay or established adequate reserves on the Current Balance Sheet for such Taxes.
(ii) The Company has paid or and each of its Subsidiaries have withheld with respect to its Employees, stockholders their respective Employees and other third parties, parties all U.S. federal, state and non-U.S. foreign income Taxes and social security charges and similar fees, Taxes pursuant to the Federal Insurance Contribution Act amountsAct, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, withheld and has have timely paid over any all such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any of its Subsidiaries has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any waiver or extension of any statute of limitations on on, or extending the period for the assessment or collection of of, any Tax, nor has any such waiver or extension been requested from Company or any of its Subsidiaries.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company or any of its Subsidiaries has been proposed in writing formally or informally by any Tax authority. The authority to the Company is not a party to or bound by any closing of its Subsidiaries or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liability for any unpaid Taxes attributable to the VoD Business which have has not been accrued for or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any Liability liability for Taxes attributable to the VoD Business since the Balance Sheet Date other than in the ordinary course of business.
(vivii) The Company has made available provided to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and its Subsidiaries filed for the prior three (3) previous four taxable years. As of the date of this Agreement, there is no contract, agreement, plan or arrangement to which Company or any of its Subsidiaries is a party, including, but not limited to, the provisions of this Agreement, covering any employee, former employee or director of Company or any of its Subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible by reason of Sections 280G, 404 or 162(m) of the Code.
(viiviii) There are (and immediately following the Effective Time there will be) no 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.
(viiiix) 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. No claim or action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other governmental body or any arbitrator or arbitration panel is pending or, to the Company’s or any of its Subsidiaries’ Knowledge, has been threatened in writing against or with respect to the Company or any of its Subsidiaries in respect of any Tax.
(x) Neither the Company nor any of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, (c) any liability for the Taxes of any person (other than Company or any of its Subsidiaries), under Treasury Regulation §1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes. Neither the Company nor any of its Subsidiaries will be required to include any adjustment in taxable income for any Tax period (or portion thereof) ending after the Effective Time pursuant to Section 481 of the Code or any comparable provision under any Tax laws as a result of transactions or events occurring, or accounting methods employed, prior to the Closing.
(xi) 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.
(xii) Neither the Company 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.
(ixxiii) 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 or any of its Subsidiaries, informally by any Tax authority to the Company or any of its Subsidiaries or any representative thereof.
(xiv) Neither Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (as such terms are defined in Section 355(a) of the Code) in a distribution of stock intended to qualify qualifying for tax‑free Tax-free treatment under Section 355 of the Code (A) in the two years prior to the date of this Agreement or (B) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xxv) The None of the Company or any of its Subsidiaries has not engaged in a “reportable transaction under Treasury Regulation Section transaction” as set forth in Treas. Reg. §1.6011-4(b), including a or any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction, ,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xixvi) 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 (A) never been 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 member branch, permanent establishment or other place of an affiliated group (within the meaning business or by virtue of Section 1504(a) having a source of the Code) filing a consolidated federal income in that jurisdiction, except for royalty income for which any income Tax Return (other than a group the common parent of which was the Company), (B) never been a party to is satisfied through withholding. The Company is not liable for any Tax sharing, indemnification or allocation agreement, nor does as the Company owe any amount under any such agreement, (C) no Liability for the Taxes agent of any Person under Treasury Regulation § 1.1502-6 (other person or any similar provision of state, local business and does not constitute a permanent establishment or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course place of business the primary purpose of which is not related to Taxes)any other person, business or otherwise, and (D) never been a party to enterprise for any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposespurpose.
(xiixvii) The Company will not be required to include any material income or gain or exclude any material deduction or loss from Taxable taxable income for any Tax period or portion thereof taxable year after the Closing Date as a result of (Aa) any change in method of accounting under Section 481 481(c) of the Code for any Tax period or portion thereof ending on or prior to the Closing DateCode, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing DateCode, (C) deferred inter-company intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C)case, under any similar provision of applicable law), (Db) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (Ec) prepaid amount received on or prior to the Closing Dateamount.
(xiiixviii) The Company uses the cash method No relief (including by way of accounting for income Tax purposes.
(xivdeduction, reduction, set-off, exemption or otherwise) The Company is from, against or in full compliance with all terms and conditions respect of any Tax exemption, Tax holiday or other Tax reduction agreement charge has been claimed by 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.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement given to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates 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.
(xix) No power of attorney (or similar authority) relating to Tax matters, Tax audits or Returns has been granted with respect to the Company or any of its Subsidiaries.
(xx) 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.
(xxi) 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 the Company or any such Subsidiary may be subject to taxation by that jurisdiction.
(xxii) The Company and each of its Subsidiaries have complied in all respects with all applicable laws relating to the withholding and payment of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 3121 and 3402 of the Surviving CorporationCode 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 utilize the proper taxing authorities all amounts required to be so withheld and paid over under such Tax Attributes after the Closinglaws.
Appears in 1 contract
Samples: Merger Agreement (Harmonic Inc)
Tax Returns and Audits. (i) The Company has and the Company Subsidiaries (a) have prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all material Taxes concerning or attributable to of the Company or its operations, (including the Company’s Subsidiaries) and such Tax Returns are true and correct in all material respects and have been or will be completed in accordance with all applicable law and Legal Requirements (b) will prepare and timely file all Returns required to be filed by the Company or a Company Subsidiary prior to the Closing Date, and when filed, such Returns shall be true and correct in all material respects and will be completed in accordance with all applicable Legal Requirements, (c) have timely paid in full all Taxes it that the Company or a Company Subsidiary is required to paypay except for Taxes being contested in good faith in appropriate proceedings and for which adequate reserves have been established on the Financial Statements and (d) will timely pay in full all Taxes that the Company or a Company Subsidiary is required to pay prior to the Closing * Confidential treatment requested. Date. Neither the Company nor any Company Subsidiary currently is the beneficiary of any extension of time within which to file any Return. No claim has ever been made in writing by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Returns that the Company or any Company Subsidiary is or may be subject to taxation in that jurisdiction. There are (and immediately following the Effective Time there will be) no security interests or other Liens on any of the assets of the Company or any Company Subsidiary relating to or attributable to Taxes, other than Permitted Encumbrances.
(ii) The Company and each Company Subsidiary has withheld or paid or withheld to the appropriate authorities, with respect to its Employees, stockholders and other third partiesThird Parties, all Taxes required to be so withheld or paid, including, without limitation, all U.S. federal, state and non-U.S. income Taxes taxes and social security charges and similar fees, such as taxes and fees under the Federal Insurance Contribution Act amounts, and Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldAct, and has timely paid over any such Taxes over to the appropriate authorities, complied in all material respects with all associated reporting and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Daterecordkeeping requirements.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has Neither the Company nor any of the Company Subsidiaries has executed any waiver of any statute of limitations on or extending agreed to or requested any extension of the period for the assessment or collection of any Taxmaterial Tax which such waiver or extension is currently in effect.
(iv) No audit or other examination of any Tax Return of the Company or any of the Company Subsidiaries is presently currently in progress, nor has the Company or any of the Company Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Neither the Company nor any of the Company Subsidiaries had as of the Balance Sheet Date, the Company does not have Date any Liabilities liabilities for unpaid Taxes which have were not been accrued or reserved on the Current Balance Sheet, and the Financial Statements. The Company has not incurred any Liability for Taxes Tax liability since the Balance Sheet Date other than in the ordinary course Ordinary Course of businessBusiness.
(vi) The Company has provided or made available to Parent Acquiror or its legal counsel, counsel copies of all income and other material Tax Returns for the Company for and the prior three (3) taxable yearsCompany Subsidiaries filed after December 31, 2004.
(vii) There are (and immediately following the Effective Time there will be) no Liens on None of the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payableany of the Company Subsidiaries is treated as “tax exempt use property,” within the meaning of Section 168(h) of the Code.
(viii) Neither the Company nor any of the Company Subsidiaries has (a) 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 an affiliated group consisting of the Company and the Company Subsidiaries, (b) ever been a party to any Tax sharing, indemnification or allocation agreement and (c) ever been subject to any liability for the Taxes of any Person (other than Company or the Company Subsidiaries), under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or * Confidential treatment requested. foreign law (including any arrangement for group or consortium relief or similar arrangement). Neither the Company nor any Company Subsidiary is a party to any joint venture, partnership, other arrangement or contract which could be treated as a partnership for federal income Tax purposes.
(ix) The Company 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.
(ixx) The Neither the Company nor any of the Company Subsidiaries has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax free treatment under Section 355 of the Code.
(xxi) The Neither the Company nor any Company Subsidiary has agreed or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or foreign Legal Requirement by reason of a change in accounting method initiated by it or any other relevant party, and the IRS has not engaged proposed any such adjustment or change in accounting method in writing, nor does the Company or any Company Subsidiary have any application pending with any Governmental Entity requesting permission for any changes in accounting methods that relate to the business or assets of the Company or such Company Subsidiary.
(xii) No closing agreement pursuant to Section 7121 of the Code (or any predecessor provision) or any similar provision of any state, local or foreign Law has been entered into by or with respect to the Company or any Company Subsidiary.
(xiii) Neither the Company nor any Company Subsidiary has participated in a “reportable transaction under transaction” within the meaning of Treasury Regulation Section 1.6011-4(b), including 4(b)(1) or taken a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be reporting position on a Tax avoidance transaction and identified by noticeReturn that, regulationif not sustained, or other form would be reasonably likely to give rise to a penalty for substantial understatement of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 under Section 6662 of the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 Code (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xiixiv) The There is no agreement, plan, arrangement or other Contract covering any current or former employee (including any officer), consultant, independent contractor or director of the Company or any Person under common control with the Company (within the meaning of Sections 414(b), 414(c), 414(m) and 414(o) of the Code, and the regulations thereunder) that, individually or collectively, could give rise directly or indirectly to the payment of any amount or the provision of any benefit that would not be deductible pursuant to Section 280G or Section 162 of the Code.
(xv) Neither the Company nor any Company Subsidiary will not be required to include any in its taxable income or gain or exclude any deduction or loss from Taxable income for any Tax in a period or portion thereof after the Closing as Date any amount that is attributable to (a) a result of (A) any change in transaction that is being accounted for under the installment method of accounting under Section 481 453 of the Code for or similar provision of state, local or foreign law, (b) the Company or any Tax period Company Subsidiary being, or portion thereof ending on ceasing to be, part of an Affiliated Group or (c) any prepaid amount received or other transaction or event that occurred * Confidential treatment requested. prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on other than amounts, transactions or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or events occurring in the case Ordinary Course of each of (A), (B) and (C), under any similar provision of Business for which the applicable law), (D) installment sale income amount or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company liability is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect reflected on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that countryFinancial Statements.
(xvi) Notwithstanding anything Neither the Company nor any Company Subsidiary has ever engaged in this Agreement activities constituting a trade or business or permanent establishment (as defined in the applicable income tax treaty) in a foreign country, and neither the Company nor any Company Subsidiary is required to file Returns or pay Taxes in a country other than the United States.
(xvii) None of the Company Subsidiaries is organized under the laws of any jurisdiction outside the United States.
(xviii) Section 2.11(b)(xviii) of the Disclosure Schedule lists all tax holidays and similar tax benefits which have current applicability to the contraryCompany and each Company Subsidiary. The Company and each Company Subsidiary is currently in compliance with the requirements for all such tax holidays and similar tax benefits, the Company makes no representations and have been in compliance since such holiday or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize benefit was originally claimed by such Tax Attributes after the Closingentity.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company has (a) prepared and its Subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by them with any and all Taxes concerning or attributable Tax authority prior to the date hereof, except such Returns that are not material to the Company or and its operations, and Subsidiaries. All such Tax Returns are true true, correct and correct complete in all material respects respects. The Company and its Subsidiaries have been completed in accordance with applicable law and (b) timely paid all material Taxes it is required shown to paybe due and payable on such Returns.
(ii) The All material Taxes that the Company has paid and its Subsidiaries are required by Law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper Governmental Entity to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has and its Subsidiaries have not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax. The Company and its Subsidiaries have complied in all material respects with all Laws with respect to payments made to third parties and the withholding of any payment of withheld Taxes and has timely withheld from employee wages and other payments and timely paid over in full to the proper taxing authorities all material amounts required to be so withheld and paid over for all periods.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, No material adjustment relating to any Returns filed by the Company does not have or any Liabilities of its Subsidiaries has been proposed in writing, formally or informally, by any Tax authority to the Company or any of its Subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its Subsidiaries has any material liability for any unpaid Taxes which have not been accrued for or reserved on the Current Balance SheetCompany’s balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, and whether asserted or unasserted, contingent or otherwise, other than any liability for unpaid Taxes that may have accrued since the end of the most recent fiscal year in connection with the operation of the business of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than and its Subsidiaries in the ordinary course of business.
(vi) The Company has made available to Parent business or its legal counsel, copies of all income and other material Tax Returns any liability for unpaid Taxes incurred in connection with the Company for the prior three (3) taxable yearstransactions contemplated by this Agreement.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of Neither the Company relating nor any of its Subsidiaries has taken, intends to take, or attributable has agreed to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beentake any action or is aware of any fact or circumstance that would prevent or impede, at any timeor would reasonably be expected to prevent or impede, the Mergers, taken together, from qualifying as a “United States Real Property Holding Corporationreorganization” within the meaning of Section 897(c)(2368(a) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Northern Star Investment Corp. II)
Tax Returns and Audits. (i) The Except as set forth in Section 2.12(b)(i) of the Disclosure Schedules, the Company has and each of its Subsidiaries have (a) prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports reports, including attachments and amendments thereto (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or any of its operations, Subsidiaries or their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is they are required to pay.
(ii) The Company has and each of its Subsidiaries have paid or withheld with respect to its Employees, stockholders their respective Employees and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and all other Taxes required to be paid withheld or withheldpaid, and has have timely paid over any such Taxes withheld over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any of its Subsidiaries is delinquent in the payment of any Tax, or has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and . No adjustment relating to any Return filed by the Company does not have Knowledge that or any such action of its Subsidiaries has been proposed by any Tax authority to the Company or proceeding is being contemplatedany of its Subsidiaries or any representative thereof. No claim has ever been made by an authority in writing by a jurisdiction where the Company or any Tax authority of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the Current Balance Sheet Date other than in the ordinary course of business. The Company and each of its Subsidiaries have identified all uncertain tax positions contained in all Returns filed by the Company or its Subsidiaries and, except as set forth in Section 2.12(b)(v) of the Disclosure Schedule, have established adequate reserves and made any appropriate disclosures in the Financials in accordance with the requirements of Financial Interpretation No. 48 of FASB Statement No. 109.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and its Subsidiaries filed for the prior three (3) taxable yearsall periods since inception.
(vii) There are (and immediately following the Effective Time there will be) no 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. 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 the Company or any of its Subsidiaries.
(viii) The Neither the Company has not been, at nor any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company its Subsidiaries has (Aa) never ever been a member of an affiliated group (within the meaning of Section Code §1504(a) of the Code)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (Bb) never ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (Cc) no Liability any liability for the Taxes of any Person Person, under Treasury Regulation § §1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, and including any arrangement for group or consortium relief or similar arrangementarrangements), as a transferee or successor, by contract or agreement, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), law or otherwise, otherwise and (Dd) never ever been a party to any joint venture, partnership or other agreement arrangement that could be treated as a partnership for Tax purposes.
(xiiix) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (ASection 2.12(b)(ix) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior Disclosure Schedule sets forth the following information with respect to the Closing Date, Company and each of its Subsidiaries: (B1) closing agreement under Section 7121 the basis of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of Company and each of its Subsidiaries in its assets; (A), (B2) and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemptionnet operating loss, Tax holiday net capital loss, unused investment, foreign, or other Tax reduction agreement or order (each, a “Tax Incentive”), credit and the consummation amount of any limitation upon any of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.foregoing; and
Appears in 1 contract
Tax Returns and Audits. (i) The Company has and each of its Subsidiaries have (a) prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports reports, including attachments and amendments thereto (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or any of its operations, Subsidiaries or their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is they are required to pay.
(ii) The Company has and each of its Subsidiaries have paid or withheld with respect to its Employees, stockholders their respective Employees and other third parties, all U.S. federal, state state, local and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and all other Taxes required to be paid withheld or withheldpaid, and has have timely paid over any such Taxes withheld over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any of its Subsidiaries has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and . No adjustment relating to any Return filed by the Company does not have Knowledge that or any such action of its Subsidiaries has been proposed by any Tax authority to the Company or proceeding is being contemplatedany of its Subsidiaries or any representative thereof. No claim has ever been made in writing by an authority in a jurisdiction where the Company or any Tax authority of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of business. The Company and each of its Subsidiaries have identified all uncertain tax positions contained in all Returns filed by the Company or its Subsidiaries and have established adequate reserves and made any appropriate disclosures in the Financials in accordance with the requirements of Financial Interpretation No. 48 of FASB Statement No. 109.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and its Subsidiaries filed for the prior last three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no 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. 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 the Company or any of its Subsidiaries.
(viii) Neither the Company nor any of its Subsidiaries has (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (c) any liability for the Taxes of any Person, under Treasury Regulation §1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group or consortium relief or similar arrangements), as a transferee or successor, by contract or agreement, by operation of law or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) The Company and its Subsidiaries have disclosed on their federal income tax Returns all positions taken therein which could give rise to a substantial understatement of Tax within the meaning of Section 6662 of the Code.
(x) Neither the Company 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.
(ixxi) 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‑free tax-free treatment under Section 355 of the Code.
(xxii) The Neither the Company nor any of its Subsidiaries has not engaged in a “reportable transaction under Treasury Regulation Section transaction” as set forth in Treas. Reg. §1.6011-4(b), including a any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction, ,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xixiii) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a) Each of the Code) filing a consolidated federal income Company and each of its subsidiaries is and has at all times been resident for Tax Return (purposes in its country of incorporation or formation and is not and has not at any time been treated as resident in any other than a group the common parent of which was the Company), (B) never been a party to country for any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, purpose (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangementthe avoidance of double taxation), as a transferee or successor, by operation . Neither the Company nor any of law, by contract (its Subsidiaries is subject to Tax in any jurisdiction other than pursuant to the customary provisions its country of an agreement entered into in the ordinary course incorporation or formation by virtue of having a permanent establishment, place of business or source of income in that jurisdiction. Neither the primary purpose Company nor any of which its subsidiaries is not related to Taxes), liable for any tax as the agent of any other person or otherwise, and (D) never been business or constitutes a party to any joint venture, partnership permanent establishment or other agreement that could be treated as a partnership place of business of any other person, business or enterprise for any Tax purposespurpose.
(xiixiv) The Neither the Company nor any of its Subsidiaries will not be required to include any income or gain or exclude any deduction or loss from Taxable taxable income for any Tax period or portion thereof after the Closing as a result of any (Aa) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing DateCode, (Bb) closing agreement under Section 7121 of the Code executed on or prior to the Closing DateCode, (Cc) deferred inter-company intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of items (Aa), (B) and b), or (Cc), under any similar provision of applicable law), (Dd) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (Ee) receipt of a prepaid amount received on or prior to the Closing Dateamount.
(xiiixv) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is and its Subsidiaries are in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), ) and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Taleo Corp)
Tax Returns and Audits. Except as set forth in SECTION 2.15 of the Company Disclosure Schedule:
(i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to Taxes ("RETURNS") required to be filed by the Company with any and all Taxes concerning or attributable Tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns which are not material to the Company. To the Company's knowledge, all such Returns are true true, correct and correct complete in all material respects and have been completed in accordance with applicable law and (b) timely respects. The Company has paid all Taxes it shown to be due on such Returns. The Company is required to paynot a "United States real property holding corporation," as defined in section 897 of the Internal Revenue Code of 1986, as amended, and Section 1.897-2(b) of the regulations promulgated thereunder.
(ii) The All material Taxes that the Company has paid is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has is not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor has the Company executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No As of the date hereof, to the Company's knowledge, no audit or other examination of any Tax material Return of the Company by any Tax authority is presently in progress, nor has progress and the Company has not been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Datedate hereof, no adjustment relating to any material Taxes has been proposed in writing, formally or informally, by any Tax authority to the Company does not have or any Liabilities representative thereof.
(vi) The Company has no liability for any material unpaid Taxes which have not been accrued for or reserved on the Current Balance SheetCompany's balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, and whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since the end of the most recent fiscal year in connection with the operation of the business of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beentaken any action and does not know of any fact, at any timeagreement, plan or other circumstance that is reasonably likely to prevent the Merger from qualifying as a “United States Real Property Holding Corporation” reorganization within the meaning of Section 897(c)(2368(a) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Echo Healthcare Acquisition Corp.)
Tax Returns and Audits. Except as set forth in Schedule 2.10(a) of the Company Schedules:
(i) The Company has (a) prepared and the Subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating Returns required to any and all Taxes concerning or attributable to be filed. All Tax Returns filed by the Company or its operationsand the Subsidiaries are true, correct and such Tax Returns are true and correct complete in all material respects and have been completed in accordance with applicable law law. None of the Tax Returns filed or required to be filed by the Company and its Subsidiaries contains or will contain a disclosure statement under former Section 6661 or Section 6662 of the Code or any similar provision of any state, local or foreign law.
(bii) Each of the Company and the Subsidiaries: (A) has timely paid or accrued all Taxes it is required to pay.
pay or accrue (iiwhether or not shown as due on any Tax Return) The Company and (B) has paid or withheld with respect to its Employeesemployees all federal and state income Taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any Subsidiary has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any Subsidiary, nor has the Company or any Subsidiary executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax. No power of attorney has been granted by the Company or its Subsidiaries, and is currently in force, with respect to any matter relating to Taxes. All elections with respect to Taxes affecting the Company and its Subsidiaries, as of the date hereof, are set forth in the Tax Returns furnished to Parent, other than any elections which are not required to be included in the Tax Returns, copies of which have been made available to Parent.
(iv) No audit or other examination of any Tax Return None 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return Returns filed by the Company has or any Subsidiary or Taxes payable by the Company or any Subsidiary have been proposed the subject of an audit, action, suit, proceeding, claim, examination, deficiency or assessment by any governmental authority, and no such audit, action, suit, proceeding, claim, examination, deficiency or assessment is currently pending or threatened. Neither the Company nor any Subsidiary has taken any action that would have the effect of deferring any material liability for Taxes of the Parent or its Subsidiaries from any Tax authority. The Company is not a party period ending at or before the Effective Time to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the CompanyTax period thereafter.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities Subsidiary has any liability for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved on against in the Current Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any Subsidiary has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessbusiness consistent with past practice.
(vi) The Company has made available to Parent There are (and as of immediately following the Closing there will be) no liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or its legal counselother encumbrances of any sort (collectively, copies "Liens") on the assets of all income and other material Tax Returns for the Company for the prior three (3) taxable yearsor any Subsidiary relating to or attributable to Taxes.
(vii) There are (and immediately following is no reasonable basis for the Effective Time there will be) no Liens assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payableany Subsidiary.
(viii) The None of the assets of the Company or any Subsidiary are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(ix) Except as set forth on Schedule 2.10(b) of the Company Schedules, there is no contract, agreement, plan or arrangement to which the Company or any Subsidiary is a party, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company or any Subsidiary that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G (without regard to the exceptions set forth in Sections 280G(b)(4) and 280G(b)(5) of the Code), 404 or 162(m) of the Code.
(x) Neither the Company nor any Subsidiary has not beenfiled any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any Subsidiary.
(xi) Neither the Company nor any Subsidiary is a party to a tax sharing or allocation agreement nor does the Company or any Subsidiary owe any amount under any such agreement.
(xii) Neither the Company nor any Subsidiary is, nor has 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.
(ixxiii) The Company has not constituted either a “distributing corporation” or a “controlled corporation” Company's and each Subsidiary's tax basis in a distribution its respective assets for purposes of stock intended to qualify for tax‑free treatment under Section 355 determining its respective future amortization, depreciation and other federal income Tax deductions is accurately reflected on the tax books and records of the CodeCompany and the Subsidiaries.
(xxiv) The No adjustment relating to any Tax Return filed by the Company or any Subsidiary has been proposed formally or informally by any Tax Authority to the Company, any Subsidiary or any representative thereof which was not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is resolved more than three years ago to the same or substantially similar to one satisfaction of the types relevant Tax Authority.
(xv) Neither the Company nor any Subsidiary has agreed to make any adjustment under Section 481(a) of transactions that the Internal Revenue Service has determined Code (or any corresponding provision of state, local or foreign Tax law) by reason of a change in accounting method or otherwise, and will not be required to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance make such an adjustment as a listed transactionresult of the transactions contemplated by this Agreement.
(xvi) Schedule 2.10(b) of the Company Schedules sets forth each state, county, local, municipal or foreign jurisdiction in which the Company and each Subsidiary (i) files, is required or has been required to file Tax Returns relating to state and local income, franchise, license, excise, net worth property and sales and use Taxes or (ii) is or has been liable for any Taxes on a "nexus" basis at any time for Tax periods ending after December 31, 1994.
(xvii) Except as set forth on Schedule 2.10(b) of the Company Schedules, neither the Company nor any Subsidiary has, nor has had, a permanent establishment in Treasury Regulation Section 1.6011-4(b)(2)any foreign country, as defined in any applicable Tax treaty or convention between the United States and such foreign country.
(xixviii) The Neither the Company nor any Subsidiary has (A) never ever been a member of an affiliated a 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 the Company), (B) never been a party to any Tax sharing, indemnification or allocation agreement, nor does and neither the Company owe nor any amount under Subsidiary has any such agreement, (C) no Liability liability for the Taxes of any Person (other than the Company or any Subsidiary) under Treasury Regulation § Section 1.1502-6 (or any similar corresponding provision of state, local or non-U.S. foreign Tax law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation contract, or otherwise. Neither the Company nor any Subsidiary has any net operating losses or other tax attributes presently subject to limitation under Sections 382, 383 or 384 of lawthe Code, by contract or the federal consolidated return regulations (other than limitations imposed as a result of the transactions contemplated pursuant to this Agreement).
(xix) Neither the customary provisions Company nor any Subsidiary has constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of an agreement entered into Section 355(a)(1)(A) of the Code) in any distribution of stock qualifying for tax-free treatment under Section 355 of the ordinary course Code (i) within the two-year period ending on the date of business this Agreement or (ii) in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the primary purpose meaning of which Section 355(e) of the Code) in conjunction with the Merger contemplated by this Agreement.
(xx) Neither the Company nor any Subsidiary is not related to Taxes), or otherwise, and (D) never been a party to any joint venture, partnership partnership, or other agreement that arrangement or contract which could be treated as a partnership for Tax federal income tax purposes.
(xiixxi) The Company Parent will not be required to include incur any income or gain or exclude any deduction or loss from Taxable income for any withholding Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code liability in connection with a transaction consummated on or prior to the Closing Date (or in transactions contemplated by this Agreement. Neither Parent, the case of each of (A), (B) and (C), under Company nor any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Subsidiary will incur any transfer Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation liability by reason of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax IncentiveAgreement.
(xvxxii) The Neither the Company is not subject nor any Subsidiary has taken or agreed to Tax in take any country other than its country action or knows of incorporation or formation by virtue of having a permanent establishment any fact, agreement, plan or other place circumstance that is reasonably likely to prevent the Merger from qualifying as a reorganization within the meaning of business in that country.
(xviSection 368(a) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Concord Communications Inc)
Tax Returns and Audits. For purposes of this Section 3.8, the term "Group" shall mean, individually and collectively, (i) CPI, (ii) CII, and (iii) any corporation or other entity for which either CPI or CII may be liable for taxes incurred by such corporation or other entity. The Company taxable year of the Group ends December 31. The Group has (a) prepared duly and timely filed or caused to be filed all income tax returns (the "Tax Returns") required to be filed on behalf of itself and other material U.S. has paid in full or fully reserved against in the Financial Statements all taxes, interest, penalties, assessments and deficiencies due or claimed to be due on behalf of itself to foreign, federal, statestate or local taxing authorities (including taxes on properties, local income, franchises, licenses, sales, use and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and such payrolls). Such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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 examinationrespects, and the Company does Group is not required to pay any other taxes for such periods except as shown in such Tax Returns. Notwithstanding the preceding sentence, TBA acknowledges that CPI intends to file amended federal income tax returns as a result of information received during the audit of CPI by TBA. The income tax returns filed by the Group have Knowledge not been, and are not being, to the knowledge of CPI, examined by the Internal Revenue Service or other applicable taxing authorities for any period. All taxes or estimates thereof that are due, or are claimed or asserted by any such action taxing authority to be due, have been timely and appropriately paid so as to avoid penalties for underpayment. Except for amounts not yet due and payable, all tax liabilities to which the properties of CPI or proceeding is being contemplatedCII may be subject have been paid and discharged. No The provisions for income and other taxes payable reflected in the Financial Statements make adequate provision for all then accrued and unpaid taxes of the Group. There are no tax liens (other than liens for taxes which are not yet due and payable) on any of the property of CPI or CII, nor are there any pending or threatened examinations or tax claims asserted. The Group has not granted any extensions of limitation periods applicable to tax claims or filed a consent under Section 341(f) of the Code relating to collapsible corporations. Except in jurisdictions in which CPI or CII voluntarily files tax returns, no claim has ever been made in writing by any Tax a taxing authority that the Company either CPI or CII is or may be subject to taxation by that jurisdiction. True and correct copies of all federal, foreign, state and local income and other tax returns, notices from foreign, federal, state and local taxing authorities, tax examination reports and statements of deficiencies assessed against or agreed to by CPI or CII since January 1, 1994, have been delivered to TBA, and the same are listed in Section 3.8 of the Disclosure Schedule. Neither CPI nor CII is a jurisdiction in which it does not file Tax Returnsparty to, or bound by, any tax indemnity, tax sharing or tax allocation agreement. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company Neither CPI nor CII is not a party to any agreement that has resulted or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than would result in the ordinary course payment of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” "excess parachute payments" within the meaning of Section 897(c)(2) 280G of the Code.
(ix) The Company . CPI 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an "affiliated group," as defined in Section 1504(a) of the Code (other than a group (of which CPI is the common parent). All positions taken on federal Tax Returns that could give rise to a penalty for substantial understatement pursuant to Section 6662(d) of the Code have been disclosed on such Tax Returns. Neither CPI nor CII is a United States real property holding corporation as defined in Section 897 of the Code. No shareholder of CPI is a foreign person within the meaning of Section 1504(a1445(b)(2) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (B) never been a party to . Neither CPI nor CII has made any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount tax elections under any such agreementsection of the Code, including, without limitation under any of Sections 108, 168, 338, 441, 463, 472, 1017, 1033 or 4977 of the Code (Cor any predecessor thereof). None of the assets and properties of CPI or CII is an asset or property that TBA or any of its affiliates is or will be required to treat as being (i) no Liability for owned by any other Person pursuant to the Taxes provisions of Section 168(f)(8) of the Internal Revenue Code of 1954 as amended, and in effect immediately before the enactment of the Tax Reform Act of 1986, or (ii) tax-exempt use property within the meaning of Section 168(h)(1) of the Code. No closing agreement pursuant to Section 7121 of the Code (or any Person under Treasury Regulation § 1.1502-6 (predecessor provision) or any similar provision of any state, local local, or non-U.S. law, including foreign law has been entered into by or with respect to CPI or CII or any arrangement for group assets thereof. Neither CPI nor CII has agreed to or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than is required to make any adjustment pursuant to Section 481(a) of the customary provisions Code (or any predecessor provision) by reason of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in any accounting method of accounting under Section 481 of the Code CPI or CII, neither CPI nor CII has applications pending with any taxing authority requesting permission for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code changes in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash accounting method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday CPI or other Tax reduction agreement or order (each, a “Tax Incentive”)CII, and the consummation I.R.S. has not proposed any such adjustment or change in accounting method therefor. Neither CPI nor CII has been or is in violation (or with notice or lapse of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness time or both, would be in violation) of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement applicable law relating to the contrarypayment of withholding of taxes. Each of CPI and CII has duly and timely withheld from salaries, wages and other compensation and paid over to the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited appropriate taxing authorities all amounts required to net operating losses be so withheld and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingpaid over for all periods under all applicable laws.
Appears in 1 contract
Tax Returns and Audits. (i) The Each of the Company and its subsidiaries has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any Taxes required to be filed by the Company and all Taxes concerning or attributable each of its subsidiaries, except such Returns which are not material to the Company or its operations, Company. All such Returns were correct and such Tax Returns are true and correct complete in all material respects respects. Each of the Company and have been completed in accordance with applicable law and (b) timely its subsidiaries has paid all Taxes it due and owing by the Company and its subsidiaries (whether or not shown on any Tax Return). The Company is required not currently the beneficiary of any extension of time within which to payfile any Return.
(ii) The Except as is not material to the Company, the Company has paid or will have withheld as of the Effective Time with respect to its Employeesemployees all income Taxes, stockholders and other third partiesFICA, all U.S. federalFUTA, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Except as is not material to the Company, neither the Company nor any of its subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No Except as is not material to the Company, no audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities liability for unpaid Taxes which have not been accrued for or reserved against on the Current Company Balance SheetSheet in accordance with GAAP, and whether asserted or unasserted, contingent or otherwise, which is material to the Company, except liability for unpaid Taxes which have accrued since the date of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies None of all income and other material Tax Returns for the Company for Company's assets is treated as "tax-exempt use property" within the prior three (3meaning of Section 168(h) taxable yearsof the Code.
(vii) There are (and immediately following is no contract, agreement, plan or arrangement, including but not limited to the Effective Time there will be) no Liens on the assets provisions of this Agreement, covering any employee or former employee of the Company relating or attributable any of its subsidiaries that, individually or collectively, could give rise to Taxes other than Liens the payment of any amount for Taxes not yet due and payablewhich a deduction will be disallowed by reason of Sections 280G, 404 or 162(b) through (o) of the Code.
(viii) Neither the Company nor any of its subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its subsidiaries.
(ix) The Company is 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.
(ix) 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.
(x) The Company has is not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same party to any tax allocation or substantially similar to one sharing agreement. None of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction Company and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has its subsidiaries (A) never has been a member of an affiliated group Affiliated Group (within the meaning of Section 1504(a) of the Code, or any similar group defined under a similar provision of state, local, or foreign law) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), ) or (B) never been a party to has any Tax sharing, indemnification or allocation agreement, nor does liability for the taxes of any person (other than any of the Company owe any amount and its subsidiaries) under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local local, or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, or otherwise.
(xi) The Company has furnished Parent with a list of all federal, state, local, and (D) never foreign Tax Returns filed with respect to the Company and its subsidiaries for taxable periods ended on or after January 1, 2000, which list indicates those Tax Returns that have been a party audited. The Company has delivered to any joint ventureParent correct and complete copies of all federal income Tax Returns, partnership examination reports, and statements of deficiencies assessed against, or other agreement that could be treated as a partnership for Tax purposesagreed to by the Company and its subsidiaries since January 1, 2000.
(xii) The To the Company's knowledge, the Company will not be required to include any item of income or gain in, or exclude any item of deduction or loss from Taxable from, taxable income for any Tax taxable period (or portion thereof thereof) ending after the Closing Date as a result of any (A) any change in method of accounting under Section 481 of the Code for any Tax a taxable period or portion thereof ending on or prior to the Closing Date, ; (B) "closing agreement under Section agreement" as described in Code ss. 7121 (or any corresponding or similar provision of the Code state, local or foreign income Tax law) executed on or prior to the Closing Date, ; (C) deferred inter-company gain intercompany transactions or any excess loss account under described in Treasury Regulations under Section Code ss. 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any corresponding or similar provision of applicable state, local or foreign income Tax law), ; (D) installment sale or open transaction disposition consummated made on or prior to the Closing Date, ; or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Ydi Wireless Inc)
Tax Returns and Audits. (i) The Company has (a) prepared and each of its Subsidiaries have timely filed all income and other material U.S. United States federal, state, local and non-U.S. foreign tax returns, estimates, information statements and reports and any amendments thereto (“Tax "Returns”") relating to any and all Taxes concerning required to be filed by or attributable to on behalf of the Company or and each of its operationsSubsidiaries with any Tax authority, and such Tax Returns are true true, correct and correct complete in all material respects respects. All Taxes that are due or claimed in writing to be due from the Company and each of its Subsidiaries have been completed paid other than those for which adequate reserves have been established on the books and records of the Company and each of its Subsidiaries in accordance with applicable law GAAP. The amount of accruals and (b) timely paid all Taxes it is required to payreserves on the books and records of the Company and each of its Subsidiaries in respect of any material Tax liability for any Taxable period not finally determined have been determined in accordance with GAAP.
(ii) The Company has paid or and each of its Subsidiaries have withheld with respect to its Employeesemployees all United States federal and state income Taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amountsAct, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on on, or extending extension of the statutory period for of limitations for, the assessment or collection of any TaxTax that is still in effect. Neither the Company nor any Subsidiary has received any notice in writing from any Tax jurisdiction in respect of which the Company or the Subsidiary, as the case may be, does not file Tax returns, requesting the filing of any Tax return. No issue has been raised by any Tax authority in any audit of the Company or any of its Subsidiaries that if raised with respect to any other period not so audited would reasonably be expected to result in a material proposed deficiency or adjustment for any period not so audited that are not covered by adequate reserves on the books and records of the Company and each of its Subsidiaries in accordance with GAAP.
(iv) No audit United States federal, state, local or foreign action, suit, claim, audit, assessment, judicial or administrative proceeding, appeal of such proceeding or other examination of (each a "Tax Claim") with regard to any Tax Taxes or Return of the Company or any of its Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and .
(v) No adjustment of Tax relating to any Returns filed by the Company does not have Knowledge that or any such action or proceeding is being contemplated. No claim of its Subsidiaries has ever been made proposed in writing by any Tax authority that to the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by of its Subsidiaries or any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liability for unpaid Taxes which have has not been accrued for or reserved on the Current Company Balance SheetSheet in accordance with GAAP, and which is material to the Company, other than any liability for unpaid Taxes that may have accrued since the date of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in connection with the operation of the business of the Company and its Subsidiaries in the ordinary course of businesscourse.
(vivii) There is no contract, agreement, plan or arrangement to which the Company or any of its Subsidiaries is a party, including but not limited to the provisions of this Agreement and the agreements entered into in connection with this Agreement, covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, would be reasonably likely to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code.
(viii) Neither the Company nor any of its Subsidiaries has filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its Subsidiaries.
(ix) Neither the Company nor any of its Subsidiaries is party to or has any obligation under any Tax-sharing, Tax indemnity or Tax allocation agreement or arrangement. Neither the Company nor any of its Subsidiaries has been a distributing corporation or a controlled corporation in a transaction described in Section 355(a) of the Code.
(x) The Company has made available to Parent or its legal counsel, or accounting representatives copies of all income and other material Tax Returns for the Company and each of its Subsidiaries filed for the prior three (3) taxable yearsall periods since its inception.
(viixi) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payablepayable and for which there are adequate accruals in accordance with GAAP.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Yahoo Inc)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) Returns relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true true, complete and correct accurate in all material respects respects. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. No written claim has ever been made by a Tax Authority in a jurisdiction where the Company does not file a Tax Return that the Company is or may be subject to Tax by that jurisdiction. All Taxes due and owing by the Company (whether or not shown on any Tax Return) have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paypaid.
(ii) The Company has withheld and paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be withheld and paid in connection with amounts paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect owing to any transaction employee, independent contractor, creditor, stockholders of the Company or event occurring or payment made to such payees through and including the Closing Dateother Person.
(iii) The Company has not been delinquent in the payment of executed or agreed to any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any outstanding waiver of any statute of limitations on in respect of any Tax or extending outstanding extension of the period for the assessment or collection of any Tax, nor has any request been made in writing for any such waiver or extension.
(iv) No audit or other examination of any Tax Return of deficiencies for Taxes with respect to the Company is presently in progresshave been claimed, nor has the Company been notified in writing of any request for such an audit proposed or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing assessed by any Tax authority that the Company is Authority. There are no pending or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment threatened audits, assessments or other actions for or relating to any Tax Return filed by liability in respect of Taxes of the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to TaxesCompany. There are no matters under discussion with any Tax Authority, or known to the Company, with respect to Taxes that are likely to result in material additional liability for Taxes with respect to the Company. No issues relating to Taxes under discussion between of the Company were raised by the relevant Tax Authority in any taxing authority and the Companycompleted audit or examination that would reasonably be expected to result in a material amount of Taxes in a later taxable period.
(v) As The unpaid Taxes of the Company did not, as of the Balance Sheet Date, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Company does not have Balance Sheet (rather than in any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheetnotes thereto), and the Company has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessbusiness consistent with past practice.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payablePermitted Liens.
(viiivii) The Company is not, nor has not it been, at any time: (A) during the five-year period ending on the Closing Date, a “United States Real Property Holding Corporationreal property holding corporation” within the meaning of Section 897(c)(2) of the Code, and (B) engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax jurisdiction in a country other than the country of its formation.
(ixviii) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) has never 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 the Company)) or any similar group for federal, state, local or foreign Tax purposes, (B) has never been a party to or bound by any Tax sharing, Tax indemnification or Tax allocation agreementagreement or other similar Contract relating to Taxes (other than a commercial agreement that is entered into in the ordinary course of business and the principal purpose of which is not the sharing or allocation of Taxes), nor does the Company owe any amount under any such agreement, or (C) has no Liability liability for the Taxes of any Person (other than the Company) under Treasury Regulation § Section 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation Contract or otherwise.
(ix) The Company has never constituted either a “distributing corporation” or a “controlled corporation” in a distribution of law, by contract stock intended to qualify for tax-free treatment under Section 355 of the Code.
(other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which x) The Company is not related to Taxes), or otherwise, and (D) never been a party partner for Tax purposes with respect to any joint venture, partnership or other agreement that could be arrangement which is treated as a partnership for Tax purposes.
(xi) The Company has delivered or made available to Buyer complete and accurate copies of all federal, state, local and foreign income Tax Returns of the Company (and any predecessor of the Company) for all taxable years remaining open under the applicable statute of limitations, including, promptly upon their availability, for the most recent taxable year, and complete and accurate copies of all audit or examination reports and statements of deficiencies assessed against or agreed to by the Company (or any predecessors of the Company), and all private letter rulings, determination letters, closing agreements and other correspondence issued by or received from the IRS or any Tax Authority with respect to Tax matters of the Company, since the Company’s incorporation.
(xii) The Company has never been a party to a transaction that is a “reportable transaction” as such term is defined in Treasury Regulations Section 1.6011-4(b)(1), or any other transaction requiring disclosure under analogous provisions of state, local or foreign Tax law.
(xiii) The Company has never made an election to be treated as an “S corporation” within the meaning of Sections 1361 and 1362 of the Code or under any corresponding provision of applicable state or local Tax laws.
(xiv) The Company will not be required to include any item of income or gain in, or exclude any item of deduction or loss from Taxable from, taxable income for any Tax period (or any portion thereof thereof) ending after the Closing Date as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period installment sale or portion thereof ending other transaction on or prior to the Closing Date, (B) closing any accounting method change or agreement under Section 7121 of the Code executed on with any Tax Authority filed or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated made on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nabriva Therapeutics PLC)
Tax Returns and Audits. (i) The Company has (a) and each of its Subsidiaries have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports and any amendments thereto (“Tax Returns”"TAX RETURNS") relating to any and all Taxes concerning or attributable to the Company Company, its Subsidiaries or its operations, their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has and each of its Subsidiaries have timely paid or withheld with respect to its Employees, stockholders and other third parties, the appropriate Taxing authority all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act any other amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any of its Subsidiaries has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Company Balance SheetSheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the date of the Company Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and each of its Subsidiaries filed for the prior three (3) taxable yearsall periods since inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes 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 for Taxes on the assets of the Company or any of its Subsidiaries.
(viii) The None of the assets of the Company or any of its Subsidiaries is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(ix) Neither the Company nor any of its Subsidiaries has not beenfiled any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any of its Subsidiaries.
(x) Neither the Company nor any of its Subsidiaries is, nor has been at any time, a “"United States Real Property Holding Corporation” " within the meaning of Section 897(c)(2) of the Code.
(ixxi) The No adjustment relating to any Tax Return filed by the Company or any of its Subsidiaries 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 or any of its Subsidiaries, informally by any tax authority to the Company, any of its Subsidiaries or any representative thereof.
(xxii) The Neither the Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one nor any of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company its Subsidiaries has (Aa) never ever been a member of an affiliated group (within the meaning of Section Code sec. 1504(a) of the Code)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (Bb) never ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, (Cc) no Liability any liability for the Taxes of any Person person (other than Company or any of its Subsidiaries) under Treasury Regulation § Treas. Reg. sec. 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, or otherwise, otherwise and (Dd) never ever been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xiixiii) The Neither the Company will not be required nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to include any income or gain or exclude any deduction or loss from Taxable income qualify for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting tax-free treatment under Section 481 355 of the Code for any Tax period or portion thereof ending on or (x) in the two years prior to the Closing Date, date of this Agreement or (By) closing agreement under in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 7121 355(e) of the Code executed on or prior to Code) in conjunction with the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateMerger.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Speechworks International Inc)
Tax Returns and Audits. Except as set forth on Section 2.10(b) of the Disclosure Schedule:
(i) The As of the Closing Date, the Company has will have (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“required Tax Returns”) Returns relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law Law and (b) timely paid all Taxes it is required to pay.
(ii) The As of the Closing Date, the Company has paid or will have withheld with respect to its Employees, stockholders Employees and other third parties, all U.S. federal, state and non-U.S. income Taxes non-U.S.income taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has will have timely paid over any or will timely pay such Taxes taxes withheld over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The No claim has been made by a taxing authority that the Company is or may be subject to taxation by a jurisdiction where it does not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyfile Tax Returns.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities liabilities for unpaid Taxes which have not been adequately accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the date of the Current Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, counsel copies of all income foreign, federal, state and other material local income, payroll and unemployment Returns, all foreign value added (or similar) and all state and local property and sales and use Tax Returns for the Company filed for the prior three (3) taxable yearsall periods since January 1, 2006.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. 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) The Company has not been, at any time, a None of the Company’s assets is treated as “United States Real Property Holding Corporationtax-exempt use property,” within the meaning of Section 897(c)(2168(h) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (Aa) never 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 the Company), (Bb) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (Cc) no Liability liability for the Taxes of any Person person (other than Company) under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangementforeign Law), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)or agreement, or otherwise, otherwise and (Dd) never been a party to any joint venture, partnership or other agreement arrangement that could be treated as a partnership for Tax purposes.
(x) 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 has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(xii) No adjustment relating to any Tax Return filed by the Company has been proposed formally or, to the Knowledge of the Company or any Principal Shareholder, 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-free treatment under Section 355 of the Code (x) in the two (2) years prior to the date of this Agreement or (y) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(xiv) The Company has not participated in a reportable transaction under Treasury Regulation § 1.6011-4(b), 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 Treasury Regulation § 1.6011-4(b)(2).
(xv) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable taxable income for any Tax taxable period or portion thereof on or after the Closing as a result of any (A1) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or made prior to or in connection with the Closing DateClosing, (B2) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B1) and (C2), under any similar provision of applicable lawLaw), (D3) installment sale or open transaction disposition consummated on or prior to the Closing DateClosing, or (E4) prepaid amount received on or prior to the Closing DateClosing.
(xiiixvi) The Company uses the cash accrual method of accounting for income Tax tax purposes.
(xivxvii) The Company is and any predecessor to the Company have each been an S corporation within the meaning of the Code and for state Tax Law purposes (except in full compliance with those states which do not recognize S corporation status) at all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order times for the past ten (each, a “Tax Incentive”)10) years, and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity filed all forms and effectiveness of any taken all actions necessary to maintain such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute status. None of the Company, including but not limited any predecessor to net operating losses and research and development credits, arising in the Company or any Pre-Closing Tax Period (each, a “Tax Attribute”)Company Shareholder has taken any action, or omitted to take any action, which action or omission could result in the ability loss of Parent S corporation status or qualified subchapter S subsidiary within the meaning of Section 1361(a) of the Code (or any of its affiliates (including the Surviving Corporationcomparable state Law) status prior to utilize such Tax Attributes after the Closing.
(xviii) In the event the Section 338(h)(10) Elections are made, the Company will not be liable for any Tax under Section 1374 of the Code. The Company has not in the past ten (10) years (1) acquired assets from another corporation in a transaction in which the tax basis of the acquired assets (or any other property) was determined, in whole or in part, by reference to the tax basis of the acquired assets (or any other property) in the hands of the transferor, or (2) acquired the stock of any corporation.
Appears in 1 contract
Tax Returns and Audits. (i1) The Company Vista Vacations has (a) accurately prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning relating or attributable to the Company Vista Vacations or its operations, and such Tax
(2) The Returns are true and correct in all material respects and have been completed in accordance with applicable law and in all material respects.
(b3) Vista Vacations has timely paid all Taxes required to be paid with respect to such Returns and has withheld with respect to its employees all federal and state income Taxes, FICA, FUTA and other Taxes it is required to paywithhold.
(ii4) The Company has paid accruals for Taxes on the books and records of Vista Vacations are sufficient to discharge the Taxes for all periods (or withheld with respect the portion of any period) ending on or prior to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii5) The Company Vista Vacations has not been delinquent in the payment of any TaxTax nor, nor except as set forth in Schedule 2.8(A), is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyVista Vacations, nor has the Company Vista Vacations executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iva) No audit or other examination of any Tax Return of the Company Vista Vacations is presently in progress. Except as set forth in Schedule 2.8(A), nor has the Company been notified in writing of any request for such an audit or other examination, and the Company Vista Vacations does not have Knowledge that any liabilities for unpaid federal, state, local and foreign Taxes, whether asserted or unasserted, known or unknown, contingent or otherwise and Vista Vacations has no knowledge of any basis for the assertion of any such action liability attributable to Vista Vacations, or proceeding their respective assets or operations.
(b) Vista Vacations is being contemplated. No claim not (nor has it ever been made been) required to join with any other entity in writing by any the filing of a consolidated Tax authority that the Company is return for federal Tax purposes or may be subject to taxation in a jurisdiction in which it does not file consolidated or combined return or report for state Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company purposes.
(7) Vista Vacations is not a party to or bound by any closing Tax indemnity, Tax sharing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the CompanyTax allocation agreement.
(v) As 8) Vista Vacations has provided, or made available, to AmeriNet or its legal counsel copies of the Balance Sheet Dateall federal, the Company does not have any Liabilities provincial and state income and all sales and use Tax Returns of Vista Vacations for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes all periods since the Balance Sheet Date other than in the ordinary course of businessits date incorporation.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii9) There are (and as of immediately following the Effective Time Closing Date there will be) no Liens liens on the assets of the Company Vista Vacations relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii10) The Company Vista Vacations has not beenno knowledge of any basis for the assertion of any Tax claim which, at if adversely determined, would result in liens on the assets of Vista Vacations.
(11) Vista Vacations has no property which is being sold, conveyed or transferred pursuant to this Agreement which in the hands of AmeriNet would be treated as being owned by persons other than AmeriNet pursuant to Section 168(f)(8) of the Internal Revenue Code of 1954 as in effect immediately prior to the enactment of the Tax Reform Act of 1986, or any time, a “United States Real Property Holding Corporation” analogous provisions of any state law.
(12) None of the assets of Vista Vacations are treated as "Tax-exempt use property" within the meaning of Section 897(c)(2168(h) of the Code.
(ix13) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)There is no contract, including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (plan or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development creditsthe provisions of this Agreement, arising in covering any Pre-Closing Tax Period (eachemployee or former employee of Vista Vacations that, a “Tax Attribute”)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 ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and each Subsidiary have timely filed all income and other material U.S. federal, state, state and local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to Taxes ("RETURNS") required to be filed by Company or any and all Taxes concerning or attributable Subsidiary with any Tax authority prior to the date hereof, except such Returns which are not material to Company or its operations, and such Tax Subsidiary. All such Returns are true true, correct and correct complete in all material respects respects. Company and each Subsidiary have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The All Taxes that Company has paid or any Subsidiary is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has and each Subsidiary have not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Company or proposed against the Companyany Subsidiary, nor has the Company or any Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any Subsidiary by any Tax authority is presently in progress, nor has the Company or any Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company or any Subsidiary has been proposed in writing, formally or informally, by any Tax authority. The authority to the Company is not a party to or bound by any closing Subsidiary or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the Company does not and its Subsidiaries have no liability for any Liabilities for material unpaid Taxes which have not been accrued for or reserved on Company's or Subsidiary's balance sheets included in the Current Balance SheetAudited Company Financial Statements, and the whether asserted or unasserted, contingent or otherwise, which is material to Company has not incurred or a Subsidiary, other than any Liability liability for unpaid Taxes that may have accrued since the Balance Sheet Date other than end of the most recent fiscal year in connection with the operation of the business of Company or its Subsidiaries in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose none of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior material to the Closing Datebusiness, (B) closing agreement under Section 7121 results of the Code executed on operations or prior to the Closing Date, (C) deferred inter-company gain financial condition of Company or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Dateits Subsidiaries.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fast Eddie Racing Stables Inc)
Tax Returns and Audits. (i) The Company has (a) As of the Closing, Xxxxx Xxxxx will have prepared and filed on a timely filed basis, all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") due to be filed on or before the Closing (taking into account any extension of such due date) relating to any and all Taxes concerning or attributable to the Company Xxxxx Xxxxx or its operations, operations and such Tax Returns are true true, correct and correct in all material respects complete and have been completed in accordance with applicable law and law.
(bii) As of the Closing, Xxxxx Xxxxx: (a) will have timely paid all Taxes it is required to pay.
, except to the extent a reserve for Taxes has been established on the Balance Sheet, as adjusted for the ordinary conduct of business since the date of such Balance Sheet and (iib) The Company has paid or will have withheld with respect to its Employeesemployees and paid over to the appropriate Tax authorities all federal and state income taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amountsAct, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Xxxxx Xxxxx has not been delinquent in the payment of any Tax, Tax claimed to be due and payable by any taxing authority nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyXxxxx Xxxxx, nor has the Company Xxxxx Xxxxx executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax which waiver or extension is still in effect.
(iv) No audit or other examination of any Tax Return of the Company Xxxxx Xxxxx is presently in progress, nor has the Company Xxxxx Xxxxx been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the date of the Balance Sheet DateSheet, the Company does Xxxxx Xxxxx did not have any Liabilities liabilities for unpaid Taxes which have had not been accrued or reserved against on the Current Balance Sheet in accordance with GAAP, whether asserted or unasserted contingent or otherwise, and Xxxxx Xxxxx has no knowledge of any basis for the assertion of any such liability attributable to Xxxxx Xxxxx, its assets or operations. Since the date of the Balance Sheet, and the Company Xxxxx Xxxxx has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company Xxxxx Xxxxx has provided or made available to Parent or its legal counsel, Recruitsoft copies of all federal and state income and other material all state sales and use Tax Returns for the Company for the prior three (3) taxable yearsall periods as requested by Recruitsoft.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any sort ("LIENS") on the assets of the Company Xxxxx Xxxxx relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company Xxxxx Xxxxx 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 Xxxxx Xxxxx.
(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 Xxxxx Xxxxx 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, 404 or 162 (other than 162(a)) of the Code.
(x) Xxxxx Xxxxx has not beenfiled 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 Xxxxx Xxxxx.
(xi) Xxxxx Xxxxx is not, and has not 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.
(ixxii) The Company No adjustment relating to any Returns filed by Xxxxx Xxxxx has been proposed, formally or informally, by any Tax authority to Xxxxx Xxxxx.
(xiii) Xxxxx Xxxxx 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 Xxxxx Xxxxx), (b) never been a party to any Tax sharing, indemnification or allocation agreement, nor does Xxxxx Xxxxx owe any amount under any such agreement, (c) no liability for the Taxes of any person (other than Xxxxx Xxxxx or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise and (d) never been a party to any joint venture, partnership or, to the knowledge of Xxxxx Xxxxx, other agreement that could be treated as a partnership for Tax purposes.
(xiv) Xxxxx Xxxxx has not constituted either a “"distributing corporation” " or a “"controlled corporation” " in a distribution of stock intended to qualify for tax‑free tax-free treatment under Section 355 of the Code.
(x) The Company . Xxxxx Xxxxx has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the 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 Treasury Regulation Treas. Reg. Section 1.6011-4(b)(2).
(xixv) The Company has (A) never been a member Xxxxx Xxxxx uses the accrual method of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal accounting for income Tax Return (other than a group the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company . Xxxxx Xxxxx will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 481(c) of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that countryCode.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or Neither Xxxxx Xxxxx nor any of its affiliates (including has taken or agreed to take any action that would prevent the Surviving CorporationMerger from constituting a reorganization qualifying under Section 368(a) to utilize such Tax Attributes after of the ClosingCode. Neither Xxxxx Xxxxx nor any of its affiliates is aware of any agreement, plan or other circumstance that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Recruitsoft Inc)
Tax Returns and Audits. (i) The As of the Effective Time the Company has (a) will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports including any extensions (“Tax the "Returns”") required to be filed on or prior to such date relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law.
(bii) As of the Effective Time the Company will have timely paid all Taxes it is required to pay.
(ii) The Company has paid or pay and will have timely withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amounts, and the Federal Unemployment Tax Act amounts Act, and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, assessed or 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company is presently in progress, nor has the Company been formally or informally notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the date of the Current Balance Sheet DateSheet, the Company does not have any Liabilities had no liabilities for unpaid Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not no knowledge of any reasonable basis for the assertion of any such liability attributable to the Company, its assets or operations. No material Tax liabilities have been incurred any Liability for Taxes since the date of the Current Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all foreign, federal and state income and other material Tax all state sales and use Returns for the Company filed for the prior three (3) taxable yearsall periods requested.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beenno knowledge of any basis on which it is reasonable to anticipate the assertion of any claim relating or attributable to Taxes which, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” 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 897(c)(2168(h) of the Internal Revenue Code of 1986, as amended (the "Code.
(ix) 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").
(x) The Company has not engaged no permanent establishment in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is any country other than the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)United States.
(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) never been a member of an affiliated group asset (within the meaning of as defined in Section 1504(a341(f)(4) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was owned by the Company), .
(Bxii) never been The Company is not a party to any Tax tax sharing, indemnification or allocation agreement, except as disclosed in Section 3.11(b)(xii) of the Disclosure Schedule, nor does the Company owe any amount under any such agreement. The Company has not been, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of statebeen required to be, local included in a consolidated, combined or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (unitary Return that included an entity other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateCompany.
(xiii) The Company uses the cash method Company's Tax basis in its assets for purposes of accounting for determining its future amortization, depreciation and other federal income Tax purposesdeductions is accurately reflected on the Company's Tax books and records.
(xiv) The Company is in full compliance with all terms not, and conditions of has not been at any Tax exemption, Tax holiday or other Tax reduction agreement or order (eachtime, a “Tax Incentive”), and "United States Real Property Holding Corporation" within the consummation meaning of Section 897(c)(2) of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax IncentiveCode.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Proxim Inc /De/)
Tax Returns and Audits. (i) The Company has (a) prepared Seller shall be responsible for filing, or causing to be filed, within the time and timely filed in the manner prescribed by law, all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to pay.
(ii) The Company has paid or withheld with respect to its Employeesany Income Taxes payable by Seller and each of the Automotive Filter Companies for all taxable periods of Seller and each of the Automotive Filter Companies ending on or before the Closing Date. Seller shall also be responsible for filing, stockholders or causing to be filed, within the time and other third partiesin the manner prescribed by law, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that Returns which are required to be paid or withheld filed prior to the Closing (without regard to any available extensions for the filing of such Tax Returns) with respect to any transaction or event occurring or payment made to such payees through Taxes (other than Income Taxes) payable by Seller and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity Automotive Filter Companies with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof periods ending on or prior to the Closing Date, . Seller shall be responsible for the payment of all Taxes shown to be due under any Tax
(Ba) closing agreement under Section 7121 Seller shall provide Buyer a copy of any Tax Return relating to Income Taxes which is described above in this subparagraph and which is required to be signed by Buyer or any of the Code executed Automotive Filter Companies not later than fifteen (15) days prior to the due date (including extensions) for filing such Tax Return.
(b) Buyer shall be responsible for filing, or causing to be filed, within the time and in the manner prescribed by law, all Tax Returns relating to any Taxes (other than Income Taxes) payable by any of the Automotive Filter Companies, in each case, for all taxable periods beginning on or before the Closing Date to the extent that such Tax Returns are not required to be filed by Seller or any of the Automotive Filter Companies pursuant to the provisions of Section
(a) above. Buyer shall be responsible for the payment of all Taxes, other than Income Taxes, payable by any of the Automotive Filter Companies with respect to the Automotive Filter Business or the business, operations or property of any of the Automotive Filter Companies, to the extent that the due date (without regard to extensions thereof) for payment of such Taxes occurs at any time after the Closing Date. Buyer shall be responsible for filing all Tax Returns with respect to Income Taxes required to be filed after the Closing Date (without regard to extensions) on behalf of each of the Automotive Filter Companies in connection with the business, operations and assets of each of the Automotive Filter Companies for periods ending after the Closing Date.
(c) Seller shall have full control and ultimate discretion over all actions to be taken or decisions to be made in the course of any audit or examination, or any subsequent proceedings, including settlement or other dispositions thereof, other than any adjustment that would result in a liability of or otherwise adversely affect Buyer or any of the Automotive Filter Companies following the Closing (in which case such settlement or disposition shall not be effected without Buyer's consent, which consent shall not be unreasonably
(i) with respect to any Income Taxes due and payable by the Seller or any of the Automotive Filter Companies for any period ending on or prior to the Closing Date, ; and (Cii) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code with respect to any Taxes (other than Income Taxes) which are payable in connection with any Tax Returns which Seller and the Automotive Filter Companies are required to file pursuant to the provisions of Section 8.05(a) above. Seller shall reimburse Buyer and each Automotive Filter Company for all reasonable out-of-pocket costs incurred by Buyer and each Automotive Filter Company in connection with the taking of any action which Seller requests Buyer or such Automotive Filter Company to take in the course of such audit, examination or subsequent proceeding. If any taxing authority shall take any action which may give rise to a transaction consummated claim by any such taxing authority that: (w) any Automotive Filter Company has not filed any Tax Return relating to Income Taxes which is required with respect to any period ending on or before the Closing Date; or (x) any Automotive Filter Company has not paid in full or owes any Income Taxes for any period ending on or before the Closing Date, then the Buyer shall promptly notify Seller thereof in writing; provided, however, that any failure to notify Seller shall not release Seller from its obligation to file such Tax Returns or pay such Income Taxes as stated in this Section to the extent Seller would not be prejudiced thereby.
(d) Buyer shall have full control and ultimate discretion over all actions to be taken or decisions to be made in the course of any audit or examination or any subsequent proceedings, including settlement or other dispositions thereof (other than any adjustment that would result in a liability or otherwise adversely affect the Seller or any of its Affiliates following the Closing in which case such settlement or disposition may not be effected without Seller's consent, which consent shall not be unreasonably withheld) with respect to any Taxes (other than Income Taxes) due and payable for any period beginning on or prior to the Closing Date to the extent that, pursuant to Section 8.05(b) above, the Buyer is responsible for the filing of the Tax Returns relating to such Taxes. Buyer shall reimburse Seller for all reasonable out-of-pocket costs incurred by Seller in connection with the taking of any action which Buyer requests Seller to take in the course of such audit, examination or subsequent proceeding.
(e) If, in response to any claim which is made by any taxing authority to the effect that any of the Automotive Filter Companies owes any additional Income Taxes for any period ending on or before the Closing, Seller pays any amount to such taxing authority, Buyer shall, upon the reasonable written request of Seller, file (or in take such action as may be necessary to cause any Automotive Filter Company identified by Seller to file) a claim for refund with the appropriate taxing authorities with respect to any Income Taxes for any such period. Seller will provide Buyer or any of the Automotive Filter Companies identified by Seller as the appropriate party for making a claim for any such refund, with such information as may be reasonably necessary to enable Buyer or any of the Automotive Filter Companies identified by Seller, as the case of may be, to file a claim for refund. Buyer and each of the Automotive Filter Companies shall, at the sole cost of Seller (A), (Bincluding all reasonable out-of-pocket costs incurred by Buyer and each of the Automotive Filter Companies) promptly take all actions as may be reasonably requested by Seller to obtain such refund. Buyer acknowledges and (C), under agrees that any similar provision and all refunds of applicable law), (D) installment sale any Income Taxes paid or open transaction disposition consummated on payable by Seller or by any of the Automotive Filter Companies in connection with the operations of the Seller and the Automotive Filter Companies prior to the Closing DateDate shall be the property of Seller and such refunds, including interest thereon, net of any additional Income Taxes imposed on Buyer or (E) prepaid amount any of the Automotive Filter Companies for any period occurring after the Closing Date and which are attributable to the receipt of such refunds shall be paid by Buyer to Seller promptly after such refund is either received on or credited against such liability of Buyer or any of the Automotive Filter Companies for Taxes. Buyer agrees that neither the Buyer nor any of the Automotive Filter Companies have any right to carry back any loss incurred by any of the Automotive Filter Companies after the Closing Date to any period prior to the Closing Date.
(xiiif) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is If, in full compliance connection with all terms and conditions any audit or other investigation by any taxing authority of any Tax exemption, Tax holiday Income Taxes payable by Seller or other Tax reduction agreement any Automotive Filter Company for any period ending on or order prior to the Closing Date: (each, a “Tax Incentive”), and the consummation of the transactions contemplated i) any deduction claimed by this Agreement will not have Seller or any adverse effect on the continued validity and effectiveness of Automotive Filter Company with respect to any such Tax Incentive.
pre-closing tax period is disallowed by the taxing authority conducting such audit or investigation; and (xvii) The Company is not subject to Tax in any country other than its country of incorporation the taxing authority conducting such audit or formation by virtue of having a permanent establishment or other place of business in investigation agrees that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, Buyer or any limitations on, any Tax asset or attribute Automotive Filter Company will be permitted to use such deduction with respect to such pre- closing period for purposes of calculating the Company, including but not limited to net operating losses Taxes due and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or payable by the ability of Parent Buyer or any of its affiliates (including the Surviving Corporation) Automotive Filter Company with respect to utilize such Tax Attributes any period ending after the Closing.Closing Date (any deduction which satisfies the criteria described in subparagraphs 8.05(f) (i) and (ii) above
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is All required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income local Tax Returns (as defined below) of the Company and each Company Subsidiary, if any, have been accurately prepared and duly and timely filed, and all federal, state and local Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes (as defined below) required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to the periods covered by such returns have been paid. Neither the Company nor any transaction Company Subsidiary is or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, . Neither the Company nor is there any Company Subsidiary has had a Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor it and has the Company not executed any a waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return . None of the Company’s, or any Company is presently in progressSubsidiary’s, nor has the Company federal income tax returns have been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing audited by any Tax authority that governmental authority; and none of the Company’s, or any Company is Subsidiary’s, state or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has local income or franchise tax returns have been proposed audited by any Tax governmental authority. The Company is not a party to or bound reserves for Taxes reflected on the Balance Sheets, if any, are and will be sufficient for the payment of all unpaid Taxes payable by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As , or any Company Subsidiary, as of the Balance Sheet Date. Since the Balance Sheet Date, the Company does and each Company Subsidiary have made adequate provisions on their books of account for all Taxes with respect to its business, properties and operations for such period. The Company and each Company Subsidiary has withheld or collected from each payment made to each of its employees the amount of all taxes (including, but not have any Liabilities for unpaid Taxes which have not been accrued limited to, federal, state and local income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be withheld or reserved on the Current Balance Sheetcollected therefrom, and has paid the Company has not incurred same to the proper Tax receiving officers or authorized depositaries. There are no federal, state, local or foreign audits, actions, suits, proceedings, investigations, claims or administrative proceedings relating to Taxes or any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any Company Subsidiary now pending, and neither the Company nor any Company Subsidiary has received any notice of any proposed audits, investigations, claims or administrative proceedings relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The or any Tax Returns. Neither the Company has not beennor any Company Subsidiary is obligated to make a payment, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that nor is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been it a party to any Tax sharing, indemnification or allocation agreementagreement that under certain circumstances could obligate it to make a payment that would not be deductible under Section 280G of the Code. Neither the Company nor any Company Subsidiary has agreed, nor does is it required, to make any adjustments under Section 481(a) of the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 Code (or any similar provision of state, local or non-U.S. and foreign law, including any arrangement for group or consortium relief or similar arrangement), as whether by reason of a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into change in the ordinary course of business the primary purpose of which is not related to Taxes), accounting method 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period for which the applicable statute of limitations has not yet expired. Neither the Company nor any Company Subsidiary (i) is a party to, nor bound by or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for obligated under, any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemptionsharing agreement, Tax holiday or other Tax reduction indemnification agreement or order similar contract or arrangement, whether written or unwritten (eachcollectively, a “Tax IncentiveSharing Agreements”), and the consummation of the transactions contemplated by this Agreement will not have (ii) has any adverse effect on the continued validity and effectiveness of potential liability or obligation to any Person as a result of, or pursuant to, any such Tax IncentiveSharing Agreements.
(xvb) The Company is not subject to Tax in any country other than its country For purposes of incorporation or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement to the contraryAgreement, the Company makes no representations or warranties regarding following terms shall have the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.meanings provided below:
Appears in 1 contract
Samples: Merger Agreement (U.S. Gold Corp.)
Tax Returns and Audits. (i) The Company and each of its Subsidiaries has (aA) prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to of the Company or any of its operations, Subsidiaries and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law Law and (bB) timely paid all Taxes it is required to paypay (whether or not shown on a Return).
(ii) The Company and each of its Subsidiaries has paid or withheld reported, withheld, and remitted, as applicable, with respect to its their respective Employees, stockholders and other third partiesPersons, all U.S. federal, state state, local and non-U.S. income Taxes and Taxes, social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or reported and/or remitted and withheld, and has in a timely manner paid over any such Taxes over withheld amounts to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateTax Authorities.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and and, to the Company does Knowledge of the Company, there has not have Knowledge occurred any event or condition that any such action would reasonably be expected to constitute a basis for an audit or proceeding is being contemplatedother examination (other than as may be conducted in the ordinary course of business by the Tax Authorities). No written claim has ever been made in writing by any Tax authority that the Company or any of its Subsidiaries is or may be subject to taxation in a jurisdiction in which where it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company or any of its Subsidiaries has been proposed in writing by any Tax authorityAuthority to the Company or any of its Subsidiaries or any representative thereof. The Neither the Company nor any of its Subsidiaries is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the CompanyTax Authority.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any of its Subsidiaries has any Liabilities for unpaid Taxes as of the Balance Sheet Date which have not been accrued or reserved on the 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 Balance Sheet Date other than in the ordinary course of business. Neither the Company nor any of its Subsidiaries will have any Liability for Taxes through the Closing Date in excess of the amount reflected on the 2010 Financials and/or the Closing Working Capital Statement.
(vi) The Company has made available Made Available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and its Subsidiaries filed for all taxable periods for which the prior three (3) taxable yearsstatute of limitations are still open.
(vii) There are (and immediately following the Effective Time there will be) no Liens (other than Permitted Liens) on the assets of the Company or any of its Subsidiaries relating or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii) The Neither the Company has not nor any of its Subsidiaries are or have been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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‑free tax free treatment under Section 355 of the Code.
(x) The Neither the Company nor any of its Subsidiaries has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Neither the Company nor any of its Subsidiaries has (A) never ever been a member of an affiliated group (within the meaning of Section 1504(a) of the Code) Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (B) never ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, or (C) no any Liability for the Taxes of any Person person under Treasury Regulation Treas. Reg. § 1.1502-6 (or any similar provision of state, local or non-U.S. lawforeign Law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by Contract, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)Law, 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.
(xii) The Neither the Company nor any of its Subsidiaries will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax taxable period or portion thereof ending after the Closing Date as a result of any (A) any change in method of accounting under Section 481 of the Code for any Tax a taxable period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any similar provision of applicable lawLaw), (D) installment sale or open transaction disposition consummated made on or prior to the Closing Date, Date or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method and each of accounting for income Tax purposes.
(xiv) The Company its Subsidiaries is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xvxiv) The Neither the Company nor any of its Subsidiaries 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 in that country. The Company and each of its Subsidiaries 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 arrangement for the avoidance of double taxation). Neither the Company nor any of its Subsidiaries is liable for any Tax as the agent of any other Person or constitutes a permanent establishment or other place of business of any other person, business or enterprise for any Tax purpose.
(xvixv) Notwithstanding anything The Company and each of its Subsidiaries is in this Agreement compliance with all applicable transfer pricing Laws, including the execution and maintenance of contemporaneous documentation in a timely manner 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 contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (Subsidiaries are arm’s length prices for purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Surviving Corporation) to utilize such Code. The Company, DTC, DTI and Siperian UK Limited have intended that all Company Intellectual Property is owned by the Company for Tax Attributes after the Closingpurposes. No Tax Authority has asserted that any Company Intellectual Property is owned by DTC, DTI or Siperian UK Limited.
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
Tax Returns and Audits. (i) The Company has (a) prepared Proxim and each of its subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to Taxes required to be filed by Proxim and each of its subsidiaries with any and all Taxes concerning or attributable Tax authority, except such Returns that are not material to the Company or its operations, and such Tax Proxim. Such Returns are true and correct in all material respects and have been completed in accordance with applicable law law. Proxim and (b) timely each of its subsidiaries have paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid or Proxim and each of its subsidiaries as of the Effective Time will have withheld with respect to its Employeesemployees (and timely paid over to the appropriate Taxing authority) all federal and state income taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amounts, ("FICA") and the Federal Unemployment Tax Act amounts ("FUTA") and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) except such Taxes that are required not material to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateProxim.
(iii) The Company Neither Proxim nor any of its subsidiaries has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency or adjustment outstanding, proposed or assessed against Proxim or proposed against the Companyany of its subsidiaries, nor has the Company Proxim or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any Tax material Return of the Company Proxim or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Proxim or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet DateSeptember 30, the Company does not have 2001, neither Proxim nor any Liabilities of its subsidiaries has any liability for any material unpaid Taxes which have that has not been accrued or reserved on the Current Proxim Balance SheetSheet in accordance with GAAP, and the Company whether asserted or unasserted, contingent or otherwise. Since September 30, 2001, neither Proxim nor any of its subsidiaries has not incurred any Liability liability for any material Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available There is no contract, agreement, plan or arrangement to Parent which Proxim or any of its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets subsidiaries is a party as of the Company relating date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or attributable former employee of Proxim or any of its subsidiaries that, individually or collectively, would reasonably be expected to Taxes other than Liens give rise to the payment of any amount in excess of $250,000 that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which Proxim is a party or by which it is bound to compensate any individual for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of excise taxes paid pursuant to Section 897(c)(2) 4999 of the Code.
(ixvii) The Company Neither Proxim nor any of its subsidiaries (a) is party to or has not constituted either a “distributing corporation” any obligation under any Tax sharing, indemnity or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment under Section 355 of the Code.
allocation agreement or arrangement, (xb) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never ever 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 group the common parent of which was the CompanyProxim), or (Bc) never been a party to has any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability liability for the Taxes of any Person person (other than Proxim or any of its subsidiaries) under Treasury Regulation § 1.1502Treas. Reg.
Section 1. 1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, 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.
(xiiviii) The Company will not be required Neither Proxim nor any of its subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to include any income or gain or exclude any deduction or loss from Taxable income qualify for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting tax-free treatment under Section 481 355 of the Code for any Tax period or portion thereof ending on or (x) in the two years prior to the Closing Date, date of this Agreement or (By) closing agreement under in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 7121 355(e) of the Code executed on or prior to Code) in conjunction with the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateMerger.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Western Multiplex Corp)
Tax Returns and Audits. Except as would not, individually or in the aggregate, have a Company Material Adverse Effect:
(i) The Company has (a) and each of its Subsidiaries have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports and any amendments thereto (“Tax Returns”"TAX RETURNS") relating to any and all Taxes concerning or attributable to the Company Company, its Subsidiaries or its operations, their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to payLaw.
(ii) The Company has paid or withheld and each of its Subsidiaries have complied with respect all applicable Laws relating to its Employees, stockholders the payment and other third parties, all U.S. federal, state and non-U.S. income withholding of Taxes and social security charges have timely withheld and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, foreign or domestic Governmental Entity exercising any taxing or Tax regulatory authority (a "TAXING AUTHORITY") all Taxes and will pay or withhold (and pay over) such Taxes that are any other amounts required to be paid or withheld in connection with respect amounts paid or owed to any transaction employee, independent contractor, creditor or event occurring or payment made to such payees through and including the Closing Dateother third party.
(iii) The Neither Company has not been nor any of its Subsidiaries is delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the CompanyCompany or any of its Subsidiaries, nor has the does Company executed or any of its Subsidiaries have in effect any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company been notified in writing or any of its Subsidiaries received written notification of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company or any of its Subsidiaries relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viiivi) The None of the assets of Company or any of its Subsidiaries is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(vii) Neither Company nor any of its Subsidiaries is, nor has not been, been at any timetime during the 5-year period ending with the Effective Time, a “"United States Real Property Holding Corporation” " within the meaning of Section 897(c)(2) of the Code.
(viii) Neither Company nor any of its Subsidiaries (1) is, or since January 1, 2002 has been, a member of an affiliated group (within the meaning of Code Section 1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (2) is a party to any Tax sharing, indemnification or allocation agreement, nor does Company or any of its Subsidiaries owe any amount under any such agreement, or (3) has any liability for the Taxes of any Person (other than Company or any of its Subsidiaries) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract, or otherwise.
(ix) The Neither 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‑free 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.
(x) The Neither Company nor any of its Subsidiaries has not engaged participated in a reportable transaction under Treasury Regulation Section 1.6011-4(b), 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 tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)6707A(c)(2) of the Code.
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is its Subsidiaries are 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.
(each, xii) No claim has been made in writing by any Taxing Authority in a “Tax Incentive”), and the consummation jurisdiction where none of the transactions contemplated by this Agreement Company or any of its Subsidiaries files Tax Returns to the effect that any of Company or its Subsidiaries is or may be subject to taxation by, or any of Company or its Subsidiaries is required to file any Tax Return in, that jurisdiction.
(xiii) Neither Company nor any of its Subsidiaries (a) has agreed to or is required to make any adjustment under Section 481 of the Code that will not have require an adjustment to taxable income for any adverse effect on period following the continued validity and effectiveness of Effective Time, (b) has received written notification that the Internal Revenue Service is proposing any such Tax Incentiveadjustment, or (c) has an application pending with the Internal Revenue Service requesting permission for any changes in methods of accounting.
(xiv) To the knowledge of Company, (a) neither Company nor any of its Subsidiaries has participated in or cooperated with an international boycott within the meaning of Section 999 of the Code and (b) Company is not and, within the past three years, has not been a passive foreign investment company within the meaning of Section 1297 of the Code.
(xv) The Company is has not subject within the past three years received written notification from any U.S. federal or state Taxing Authority making or proposing any adjustment of Tax items of the Company or any of its Subsidiaries pursuant to Tax in any country other than its country Section 482 of incorporation or formation by virtue of having a permanent establishment or other place of business in that countrythe Code.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Neither Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or nor any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingSubsidiaries has entered into a gain recognition agreement described in Treas.
Appears in 1 contract
Samples: Merger Agreement (Covansys Corp)
Tax Returns and Audits. Except as set forth in Schedule 3.8:
(i) The Company has (a) Seller as of the Closing Date will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any and all Taxes concerning or attributable to the Company Seller or its operations, operations and such Tax Returns are will be true and correct in all material respects and will have been completed in accordance with applicable law and in all material respects.
(bii) timely Seller as of the Closing Date: (A) will have paid or accrued all material Taxes it is required to pay.
pay or accrue and (iiB) The Company has paid or will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Seller has not been adjudicated delinquent by any Tax Authority in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanySeller, nor has the Company Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Seller is presently in progress, nor has the Company Seller been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company Seller does not have any Liabilities material liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against on the Current current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and Seller has no knowledge of any basis for the Company has not incurred assertion of any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesssuch liability attributable to Seller, its assets or operations.
(vi) The Company Seller has made available provided to Parent or its legal counsel, Buyer copies of all federal and state income and other material all state sales and use Tax Returns filed for the Company for the prior three (3) taxable yearsfiscal years 1996, 1997, and 1998.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no Liens material liens, pledges, charges, claims, security interests or other encumbrances of any sort ("LIENS") on the assets of Seller relating to or attributable to Taxes.
(viii) Seller has no knowledge of any basis for the Company assertion of any claim relating or attributable to Taxes other than Liens for Taxes not yet due and payablewhich, if adversely determined, would result in any Lien on the assets of Seller.
(viiiix) The Company None of Seller's assets are treated as "tax exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Closing Date, Seller will not be a party to any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Seller that could obligate Seller to pay any amount that would not be deductible pursuant to Section 280G of the Code.
(xi) Seller has not beenfiled any consent agreement under Section 341(f) of the Code nor 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 Seller.
(xii) Seller is not a party to a tax sharing or allocation agreement nor does Seller owe any amount under any such agreement.
(xiii) Seller is not, and has not 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.
(ixxiv) The Company has not constituted either a “distributing corporation” or a “controlled corporation” Seller's tax basis in a distribution its assets for purposes of stock intended to qualify for tax‑free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)determining its future amortization, including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction depreciation and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into tax deductions is accurately reflected on Seller's tax books and records in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesall material respects.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Fastcomm Communications Corp)
Tax Returns and Audits. Except as set forth in Schedule 4.1(i):
(iA) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports required to be filed on or before the Closing Date (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, operations occurring before the Closing Date and such Tax Returns are true and correct in all material respects and have been or will be completed in accordance with applicable law in all material respects and (b) timely paid in full all Taxes it is required to paydue and payable by the Company.
(iiB) The Company has withheld or paid to the appropriate authorities or withheld depositories, with respect to its Employees, stockholders employees and other third parties, all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes required to be paid so withheld or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepaid.
(iiiC) The Company has is not been now delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor . The Company has the Company not executed any waiver of any statute of limitations that has not expired on or extending the period for the assessment or collection of any Tax.
(ivD) No audit audit, investigation 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 audit, investigation or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(vE) As of the Balance Sheet Date, the The Company does not have any Liabilities has no liability for unpaid Taxes as of the Unaudited Balance Sheet Date which have has not been accrued or reserved on the Current Unaudited Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the Unaudited Balance Sheet Date other than in the ordinary course of business.
(viF) The Company has made available to Parent or its legal counsel, counsel copies of all income and other material Tax Returns filed for the Company for the prior three (3) taxable yearsall periods since 2005.
(viiG) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. 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.
(viiiH) The Company has not (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return, (b) ever been a party to any Tax sharing, indemnification or allocation agreement, (c) no liability for the Taxes of any Person (other than Company), under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or agreement, or otherwise and (d) never been a party to any joint venture, partnership, limited liability company or other arrangement that could be treated as a partnership for Tax purposes.
(I) 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 its Tax Books and Records.
(J) 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.
(ixK) The No adjustment relating to any Return that has been filed by the Company and for which the period for the making of such adjustment has not constituted either expired by the application of a “distributing corporation” or a “controlled corporation” statute of limitation, has been proposed in a distribution of stock intended writing to qualify for tax‑free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe by any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposestax authority.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Salary. Com, Inc.)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed To the extent that failure to do so would adversely impact the Purchased Assets or the Buyer Parties’ ownership of the Purchased Assets or operation of the Business, all income and other material required U.S. federal, state, local and any non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to Seller’s operation of the Company or its operations, Business and the Purchased Assets have been prepared and timely filed and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and Law.
(bii) There are no Liens on the Purchased Assets relating or attributable to Taxes, other than Permitted Liens.
(iii) To the extent that failure to do so would adversely impact the Purchased Assets or the Buyer Parties’ ownership of the Purchased Assets or operation of the Business, Seller has timely paid all Taxes it is required to pay.
(ii) The Company pay and Seller has timely paid or withheld with respect to its Employees, stockholders employees and other third partiesThird Parties (and timely paid over any withheld amounts to the appropriate Tax authority) any U.S. federal and state income, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts wage and other Taxes required to be paid withheld or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Taxpaid.
(iv) No Seller has no Knowledge of any basis for the assertion of any claim for any Liabilities for unpaid Taxes for which the Buyer Parties would become liable as a result of the transactions contemplated by this Agreement or that would result in any Lien (other than Permitted Liens) on any of the Purchased Assets
(v) To the extent applicable to the Purchased Assets or the Buyer Parties’ ownership of the Purchased Assets or operation of the Business, (i) no audit or other examination of any Tax Return of the Company Seller is presently in progress, nor has the Company Seller been notified in writing of any request for such an audit or other examination; (ii) no adjustment relating to any Return filed by Seller has been proposed formally or, to the Knowledge of Seller, informally by any Tax authority to Seller or any representative thereof; and the Company does not have Knowledge that any such action or proceeding is being contemplated. No (iii) no claim has ever been made by an authority in writing by any Tax authority a jurisdiction where Seller does not file Returns that the Company it is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company Each Seller has (a) prepared and timely filed all income and other material U.S. federal, state, local local, and non-U.S. foreign Tax Returns, including all amended returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and in each jurisdiction where such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it Seller is required to pay.
(ii) The Company do so or has paid or withheld with respect to its Employeesmade provision for the payment of any penalty or interest arising from the late filing of any such return, stockholders and other third parties, has correctly reflected all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldshown thereon, and has timely fully paid over any such Taxes over to or made adequate provision for the appropriate authorities, and will pay or withhold (and pay over) such payment of all Taxes that have been incurred or are required due and payable pursuant to be paid such returns or withheld pursuant to any assessment with respect to Taxes in such jurisdictions, whether or not in connection with such returns. No Seller is currently subject to any audits with respect to any transaction federal, state, local, or event occurring foreign Tax Returns required to be filed and there are no unresolved audit issues with respect to prior years’ Tax Returns. There are no circumstances or payment made pending questions relating to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment potential Tax Liabilities nor claims asserted for Taxes or assessments of any TaxSeller that, nor is there if adversely determined, could result in a Tax Liability that could reasonably be expected to cause a Material Adverse Change to any Tax deficiency outstandingSeller or, assessed the Acquired Assets, or proposed against the Company, nor Insurance Business for any period. No Seller has the Company executed any an extension or waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) Tax due that is currently in effect. No audit Seller is holding any unclaimed property that it is required to surrender to any state taxing authority including, without limitation, any uncashed checks 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 examinationunclaimed wages, and the Company does not have Knowledge that any each Seller has timely filed all unclaimed property reports required to be filed with such action or proceeding is being contemplatedstate taxing authorities. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax ReturnsSeller purges its Records of uncashed checks. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.3.12
Appears in 1 contract
Samples: Asset Purchase Agreement
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all material Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has timely paid all material Taxes it is required to pay and has timely paid or withheld with respect to its Employees, stockholders and other third parties, Employees all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsAct, Federal Federal
(iii) Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iiiiv) The Company has is not been currently delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax, except as noted on the Company Disclosure Schedule.
(ivv) 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(vvi) As of the date of the Current Balance Sheet DateSheet, the Company does did not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the date of the Current Balance Sheet Date other than in the ordinary course of business.
(vivii) The Company has made available to Parent or its legal counsel, copies of all foreign, federal, state and local income and other material Tax all state and local sales and use Returns for the Company filed for the prior three (3) taxable yearsall periods since its inception.
(viiviii) There are (and immediately following the Effective Time there will be) no Liens 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 does not beenhave knowledge of any basis for the assertion of any claim relating or attributable to Taxes, at which, if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within Lien on the meaning of Section 897(c)(2) assets of the CodeCompany.
(ix) The Company has does not constituted either a “distributing corporation” or a “controlled corporation” in a distribution treat any of stock intended to qualify for tax‑free treatment under its assets as "tax-exempt use property," within the meaning of Section 355 168(h) of the Code.
(x) The Company has not engaged in a reportable transaction filed any consent agreement under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 341(f) of the types Code or agreed to have Section 341(f)(2) of transactions that the Internal Revenue Service has determined Code apply to be any disposition of a Tax avoidance transaction and identified subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)the Company.
(xi) The Company has (Aa) never been a member of an affiliated group (within the meaning of Section Code §1504(a) of the Code)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (Bb) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, agreement (Cc) no Liability liability for the Taxes of of
(xii) any Person person under Treasury Regulation Treas. Reg. § 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, or otherwise, otherwise and (Dd) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses is not and has not been at any time, a "United States Real Property Holding Corporation" within the cash method meaning of accounting for income Tax purposesSection 897(c)(2) of the Code.
(xiv) The No adjustment relating to any Return filed by the Company is in full compliance with all terms and conditions of any Tax exemptionhas been proposed formally or, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and to the consummation Knowledge of the transactions contemplated Company, informally by this Agreement will not have any adverse effect on tax authority to the continued validity and effectiveness of Company or any such Tax Incentiverepresentative thereof.
(xv) The Company is has not subject constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to Tax qualify for tax-free treatment under Section 355 of the Code (x) in any country other than its country the two years prior to the date of incorporation or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement to or (y) in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute meaning of Section 355(e) of the Company, including but not limited to net operating losses and research and development credits, arising Code) in any Pre-Closing Tax Period (each, a “Tax Attribute”), or conjunction with the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingAcquisition.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) and each of its Subsidiaries have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Company, its Subsidiaries or its operations, their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has and each of its Subsidiaries have timely paid or all Taxes required to be paid and withheld with respect to its Employees, stockholders their Employees (and other third parties, paid over to the appropriate Taxing authority) all U.S. federal, federal and state and non-U.S. income Taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any of its Subsidiaries has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its subsidiaries has not incurred any Liability liability for Taxes since the date of the Company Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and each of its Subsidiaries filed for the prior three (3) taxable yearsall periods since inception.
(vii) There are (and immediately following the Effective Time there will be) no 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. There is no basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any Lien for Taxes on the assets of the Company or any of its subsidiaries.
(viii) The None of the assets of the Company or any of its Subsidiaries is treated as “tax-exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) Neither the Company nor any of its Subsidiaries is, 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.
(ixx) The No adjustment relating to any Return filed by the Company or any of its Subsidiaries 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)or any of its Subsidiaries, including a transaction that is informally by any tax authority to the same Company, any of its Subsidiaries or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)any representative thereof.
(xi) The Neither the Company nor any of its Subsidiaries has (Aa) never ever been a member of an affiliated group (within the meaning of Section Code §1504(a) of the Code)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (Bb) never ever been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company or any of its Subsidiaries owe any amount under any such agreement, agreement (Cc) no Liability any liability for the Taxes of any Person person (other than Company or any of its Subsidiaries) under Treasury Regulation Treas. Reg. § 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, or otherwise, otherwise and (Dd) never ever been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xii) The Neither the Company will not be required nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to include any income or gain or exclude any deduction or loss from Taxable income qualify for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting tax-free treatment under Section 481 355 of the Code for any Tax period or portion thereof ending on or (x) in the two years prior to the Closing Date, date of this Agreement or (By) closing agreement under in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 7121 355(e) of the Code executed on or prior to Code) in conjunction with the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateMerger.
(xiii) The Company uses the cash method of accounting for income Tax purposes.[Reserved]
(xiv) The No claim has ever been made by any taxing authority in a jurisdiction where the Company or any of its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentivemay be subject to taxation within that jurisdiction.
(xv) The Neither the Company nor any of its Subsidiaries has consummated, has participated in, or is not subject to Tax currently participating in any country other than its country of incorporation transaction which was or formation by virtue of having is a permanent establishment “tax shelter,” “listed transaction” or other place of business “reportable transaction” as defined in that country.
(xvi) Notwithstanding anything in this Agreement to the contrarySections 6662, the Company makes no representations 6662A, 6011, 6012 or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute 6707A of the CompanyCode or the Treasury Regulations promulgated thereunder, including including, but not limited to net operating losses and research and development creditsto, arising transactions identified by the Internal Revenue Service by notice, regulation or other form of published guidance as set forth in any PreTreasury Regulations Section 1.6011-Closing Tax Period (each, a “Tax Attribute”4(b)(2), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Coherent Inc)
Tax Returns and Audits. (i) The Company has (a) As of the Closing Date, Seller and Sub will have prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) required Returns relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Sub. Sub's Returns are true and correct in all material respects and have been completed and filed when due in accordance with all applicable law law, and all Taxes shown due on such Returns have been paid in full.
(b) timely As of the Closing Date, Seller or Sub (i) will have paid all required Taxes it is required with respect to pay.
Sub and (ii) The Company has paid or will have withheld with respect to its Employees, stockholders employees all income taxes and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateby applicable law.
(iiic) The Company Neither Seller nor Sub has not been delinquent in the payment of any TaxTax with respect to Sub, nor is there any Tax deficiency outstanding, assessed or proposed against the CompanySub, nor has the Company Seller or Sub executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax with respect to Sub.
(ivd) No audit or other examination of any Tax Return of the Company Sub is presently in progress, nor has the Company Seller or Sub been notified in writing of any request for such an audit or other examination, and .
(e) Neither Seller nor Sub has or knows of any basis for the Company does not have Knowledge that assertion of any such action or proceeding is being contemplated. No claim has ever been made in writing by for any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity liabilities for unpaid Taxes with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and Sub for which Buyer would become liable as a result of the Companytransactions contemplated by this Agreement.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(viif) There are (and immediately following the Effective Time Closing there will be) no Liens on any of Sub's assets relating to or attributable to Taxes, and neither Seller nor Sub knows of any basis for the assets assertion of the Company any claim relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beenwhich, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect Lien on the continued validity and effectiveness assets of any such Tax IncentiveSub.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 4.6 of the Parent Schedules:
(i) The Company has (a) Parent and each of its Subsidiaries as of the Merger Effective Time will have prepared and filed on a timely filed basis, all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) required Returns relating to any and all Taxes concerning or attributable to the Company Parent, its Subsidiaries or its their operations, and such Tax Returns are true true, correct and correct in all material respects complete and have been completed in accordance with applicable law law.
(ii) Parent and each of its Subsidiaries as of the Merger Effective Time: (bA) timely will have paid or accrued all Taxes it is required to pay.
pay or accrue for any Pre-closing Period and (iiB) The Company has paid or will have withheld with respect to its Employeesemployees (and timely remitted to the appropriate taxing authority) all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither Parent nor any of its Subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed against Parent or proposed against the Companyany of its Subsidiaries of which Parent has heretofore been given notice, nor has the Company Parent or any of its Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Parent or any of its Subsidiaries of which Parent has heretofore been given notice, is presently in progress, nor has the Company Parent or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Neither Parent nor any of the Balance Sheet Date, the Company does not have its Subsidiaries has any Liabilities liabilities for unpaid Taxes with respect to any Pre-closing Period which have not been accrued or reserved against on the Current Parent Balance SheetSheet whether asserted or unasserted, contingent or otherwise, and the Company neither Parent nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the date of the Parent Balance Sheet Date other than in the ordinary course of business.
(vi) The Company Parent has made available to Parent or its legal counsel, the Company copies of all federal, foreign and state income and other material all state sales and use Tax Returns for the Company Parent and each of its Subsidiaries filed for the prior three (3) taxable yearsall periods.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no Liens on the assets of the Company Parent or any of its Subsidiaries relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at None of Parent's or any time, a “United States Real Property Holding Corporation” of its Subsidiaries' assets are treated as "tax- exempt use property" within the meaning of Section 897(c)(2168(h) of the Code.
(ix) The Company has As of the Merger Effective Time, there will not constituted either a “distributing corporation” be any contract, agreement, plan or a “controlled corporation” in a distribution arrangement, including but not limited to the provisions of stock intended this Agreement, covering any employee or former employee of Parent or any of its Subsidiaries that, individually or collectively, could give rise to qualify for tax‑free treatment under Section 355 the payment of any amount that would not be deductible pursuant to Sections 280G, 162(m) or 404 of the Code.
(x) The Company Neither Parent nor any of its Subsidiaries has not engaged in a reportable transaction filed any consent agreement under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 341(f) of the types Code or agreed to have Section 341(f)(2) of transactions that the Internal Revenue Service has determined Code apply to be any disposition of a Tax avoidance transaction and identified subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by notice, regulation, Parent or other form any of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)its Subsidiaries.
(xi) The Company Neither Parent nor any of its Subsidiaries has (A) never ever been a member of an affiliated group (within the meaning of Section 1504(a) of the CodeCode ss.1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the CompanyParent), (B) never ever been a party to any Tax sharing, indemnification a tax sharing or allocation agreement, agreement (nor does the Company Parent or any of its Subsidiaries owe any amount under any such agreement), (C) no Liability any liability for the Taxes of any Person person (other than Parent or any of its Subsidiaries) under Treasury Regulation § 1.1502Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)or agreement, or otherwise, otherwise and (D) never ever been a party to any joint venture, partnership or other agreement arrangement that could be treated as a partnership for Tax purposes.. -39- C:\WINDOWS\temp\Merger Agreement.doc (265888)
(xii) The Company will not be required to include Neither Parent nor any income of its Subsidiaries is, or gain or exclude has been at any deduction or loss from Taxable income for any Tax period or portion thereof after time, a "United States real property holding corporation" within the Closing as a result meaning of (ASection 897(c)(2) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateCode.
(xiii) The Company uses the cash method No adjustment relating to any Return filed by Parent or any of accounting for income Tax purposesits Subsidiaries has been proposed in writing by any tax authority to Parent or any of its Subsidiaries or any representative thereof.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Neither Parent or nor any of its affiliates Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (including A) in the Surviving Corporationtwo years prior to the date of this Agreement or (B) to utilize such Tax Attributes after in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the Closingmeaning of Section 355(e) of the Code) in conjunction with the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Autotradecenter Com Inc)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid Legal Requirements in all Taxes it is required to paymaterial respects.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, withheld and has timely have paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) Tax authority all such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateTaxes.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination, and the Company does not have has no Knowledge that any such action or proceeding is being contemplated. There is no Tax deficiency outstanding, assessed or proposed against the Company. No claim has ever been made in writing by any Tax authority that in a jurisdiction in which the Company does not file Tax Returns that it is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authoritythat jurisdiction. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities has no liabilities for unpaid Taxes which have not been accrued or reserved on the Current Company Balance SheetSheet in accordance with GAAP, and the Company has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessbusiness or in connection with the transactions contemplated by this Agreement.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payablePermitted Liens.
(viiivii) The Company is not, nor has not been, at any timebeen during the five-year period ending on the Closing Date, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(viii) The Company (a) has 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) does not owe any amount under any Tax sharing, indemnification or allocation agreement, (c) has no liability for the Taxes of any Person (other than Company) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise, or (d) has not been a party to any joint venture, partnership or other agreement that is treated as a partnership for Tax purposes.
(ix) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax-free treatment under Section 355 of the CodeCode during the two-year period ending on the Closing Date.
(x) The Company has delivered or made available to Parent or its legal counsel, copies of all income Tax Returns and all other material Tax Returns for the Company filed for all Tax periods ended on or after December 31, 2006, other than immaterial information Tax Returns (e.g., Forms W-2 and 1099).
(xi) The Company has not engaged in a any reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service IRS has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable taxable income for any Tax period or portion thereof after the Closing as a result of (Aa) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing DateClosing, (Bb) closing agreement under Section 7121 of the Code executed on or prior to the Closing DateClosing, (Cc) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (Aa), (Bb) and (Cc), under any similar provision of applicable law), (Dd) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (Ee) prepaid amount received on or prior to the Closing DateClosing.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any applicable Tax exemption, Tax relief, Tax holiday or other Tax reduction agreement agreement, order or order legislative provision (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xvxiv) The Company is not and has never been a resident for any Tax purpose or otherwise subject to Tax in any country other than its country of incorporation or formation by virtue formation. The Company is not and has never been liable for any Tax as the agent of having any other Person or business or constitutes a permanent establishment or other place of business in that countryof any other Person, business or enterprise for any Tax purpose.
(xvixv) Notwithstanding anything The Company is in this Agreement compliance in all 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 CS Delaware. The prices for any property or services (or for the use of any property) provided by or to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute are arm’s length prices for purposes of the Companyrelevant transfer pricing laws, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or Treasury Regulations promulgated under Section 482 of the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Samples: Merger Agreement (Volcano Corp)
Tax Returns and Audits. (i) The Company Each of the Subsidiaries has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”including amendments thereto) relating to any and all Taxes concerning or attributable (“Tax Returns”) required to the Company or its operations, and such Tax Returns are true and correct in all material respects be filed by any of them and have been completed paid, or have adequately reserved (in accordance with applicable law and (bGAAP) timely paid all Taxes it is required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third partiesfor the payment of, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldpaid, and has timely paid over the most recent financial statements contained in the SEC Reports reflect an adequate reserve (in accordance with GAAP) for all Taxes payable by the Subsidiaries through the date of such financial statements. No material deficiencies for any such Taxes over have been asserted or assessed, or to the appropriate authoritiesKnowledge of the Seller, and will pay or withhold (and pay over) such Taxes proposed, against any of the Subsidiaries that are required not subject to be paid or withheld adequate reserves (in accordance with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the CompanyGAAP), nor has any of the Company Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(ivii) Each of the Subsidiaries has timely paid or withheld with respect to its Employees (and paid over any amounts withheld to the appropriate Taxing authority) all federal, state, provincial and foreign income taxes, Federal Insurance Contribution Act, Federal Unemployment Tax Act and other similar Taxes required to be paid or withheld.
(iii) No audit or other examination of any material Tax Return of any of the Company Subsidiaries is presently in progress, nor has any of the Company Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(viiv) The Company Seller has made available to Parent Buyer or its legal counsel, copies of all income and other material Tax Returns for the Company Seller and each of its Subsidiaries for all years for which the prior three (3) taxable yearsapplicable statute of limitations has not expired.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viiiv) The Company has not beenand each of its Subsidiaries have charged, at collected and remitted on a timely basis all Taxes as required by any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)applicable legislation, including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amountsales, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses added and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingad valorem Taxes.
Appears in 1 contract
Samples: Stock Purchase and Option Agreement (Transax International LTD)
Tax Returns and Audits. (i) The Company has (a) As of the Closing Date, Seller will have prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) required Returns relating to any and all Taxes concerning or attributable to the Company or its operations, Seller's operations and such Tax Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law and law.
(bii) timely As of the Closing Date, Seller (A) will have paid all Taxes it is required to pay.
pay and (iiB) The Company has paid or will have withheld with respect to its Employees, stockholders and other third parties, employees all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsFICA, Federal Unemployment Tax Act amounts FUTA, and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Seller has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or or, to Seller's knowledge, proposed against the CompanySeller, nor has the Company Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Seller is presently in progress, nor has the Company Seller been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company Seller does not have any Liabilities liabilities for unpaid Taxes federal, state, local, or, to Seller's knowledge, foreign Taxes, which have not been accrued or reserved on in accordance with GAAP in the Current Balance SheetSeller Financial Statements, whether asserted or unasserted, contingent or otherwise, and the Company Seller has not incurred any Liability liability for Taxes since the Balance Sheet Date March 31, 2002 other than in the ordinary course of business.
(vi) The Company Seller has made available to Parent Buyer or its legal counsel, copies of all foreign, federal, state and local income and other material Tax all state and local sales and use Returns filed for the Company for the prior three (3) taxable yearsall periods.
(vii) There are (and immediately following the Effective Time Closing there will be) no Liens on the assets of the Company Assets relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii) The Company Seller is not aware 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.
(ix) None of the Assets are treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) Seller has not beenfiled any consent agreement with respect to any of the Assets 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 Seller.
(xi) Seller is not a party to any tax sharing, indemnification or allocation agreement with respect to the Assets nor does Seller owe any amount under any such agreement.
(xii) Seller's tax basis in the Assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on the Books and Records.
(xiii) Seller 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.
(ixxiv) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party No adjustment relating to any Tax sharing, indemnification or allocation agreement, nor does the Company owe Return filed by Seller has been proposed by any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (tax authority to Seller or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentiverepresentative thereof.
(xv) The Company is not subject Seller has no liability for corporation tax on chargeable gains or similar Taxes in connection with the disposition of any asset disposed of by or 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 countrySeller.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Ista Pharmaceuticals Inc)
Tax Returns and Audits. (i) The Company Graduate and each of its Subsidiaries has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimatesdeclarations, reports, claims for refund, or information returns or statements relating to Taxes, including any schedule or attachment thereto, and reports including any amendment thereof (“Tax Returns”) relating required to any be filed by Graduate and all Taxes concerning or attributable to the Company or each of its operations, and such Tax Returns are true and correct in all material respects Subsidiaries and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has Graduate and each of its Subsidiaries as of the Merger Effective Date will have withheld and paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be have been withheld and paid in connection with any amounts paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect owing to any transaction independent contractor, creditor, stockholder or event occurring or payment made to such payees through and including the Closing Dateother third party.
(iii) The Company Neither Graduate nor any of its Subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed against Graduate or proposed against the Companyany of its Subsidiaries, nor has the Company Graduate or any of its Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No Except as otherwise disclosed in Section 3.15(b)(iv) of the Graduate Disclosure Letter, no audit or other examination of any Tax Return of the Company Graduate or any of its Subsidiaries is presently currently in progress, nor has the Company Graduate or any of its Subsidiaries been notified in writing of any request for such an audit or other examination. Except as otherwise disclosed in Section 3.15(b)(iv) of the Graduate Disclosure Letter, and during the Company does not have Knowledge that last three years, no Return of Graduate or any such action or proceeding is being contemplated. No claim of its Subsidiaries has ever been made audited or examined by any tax authority, and no notice of such an audit or examination has been received by Graduate or its Subsidiaries. No deficiencies for any Taxes have been proposed, asserted or assessed in writing by against Graduate or any Tax authority of its Subsidiaries that are not adequately reserved for, and no requests for waivers of the Company is time to assess any such taxes have been granted or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or are pending (other agreement or ruling with any Governmental Entity than with respect to Taxes. There years that are no matters relating to Taxes currently under discussion between any examination by the Service or other applicable taxing authority and the Companyauthorities).
(v) As Except as otherwise disclosed in Section 3.15(b)(v) of the Balance Sheet DateGraduate Disclosure Letter, no adjustment relating to any Returns filed by Graduate or any of its Subsidiaries has been proposed formally or informally by any Tax authority to Graduate or any of its Subsidiaries or any representative thereof and, to the Company does not have knowledge of Graduate or any Liabilities of its Subsidiaries, no basis exists for any such adjustment which would be material to Graduate.
(vi) To the knowledge of Graduate or any of its Subsidiaries, neither Graduate nor any of its Subsidiaries has any liability for unpaid Taxes which have not been accrued for or reserved on the Current Balance SheetGraduate’s balance sheet as of June 30, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years2006.
(vii) There are (and immediately following the Effective Time there will beExcept as otherwise disclosed in Section 3.15(b)(vii) no Liens on the assets of the Company Graduate Disclosure Letter, no power of attorney that is currently in force has been granted with respect to any matter relating or attributable to Taxes other than Liens for Taxes not yet due and payablepayable by Graduate or any of its Subsidiaries.
(viii) The Company has not been, at Neither Graduate nor any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Codeits Subsidiaries is party to or affected by any tax-sharing or allocation agreement or arrangement.
(ix) 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 3.15(b)(ix) of the Code.
Graduate Disclosure Letter lists (x) The Company any Tax exemption, Tax holiday or similar Tax reducing agreement that Graduate or any of its Subsidiaries has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)any jurisdiction, including a transaction that is the same or substantially similar to one nature, amount and lengths of the types of transactions that the Internal Revenue Service has determined to be a such Tax avoidance transaction and identified by noticeexemption, regulation, Tax holiday or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
Tax sparing arrangement and (xiy) The Company has (A) never 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 the Company), (B) never been a party to any Tax sharing, indemnification expatriate tax programs or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (policies affecting Graduate or any similar provision of stateits Subsidiaries. To the knowledge of Graduate or any of its Subsidiaries, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) Graduate and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company its Subsidiaries is in full material compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction sparing agreement or order (each, a “Tax Incentive”), of any Governmental Entity and the consummation of the transactions contemplated by referenced in this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentiveexemption, Tax holiday or other Tax-sparing agreement or order.
(xvx) The Company is not subject to Tax in There are no liens for any country Taxes upon the assets of Graduate or its Subsidiaries other than its country of incorporation or formation by virtue of having a permanent establishment or other place of business in that countrystatutory liens for Taxes not yet due and payable.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Jabil Circuit Inc)
Tax Returns and Audits. Except as set forth on Schedule 2.5:
(i) The Company Seller has (a) prepared and timely filed (taking into account valid extensions of the time for filing) all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating returns required to any have been filed and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true returns were true, correct and correct complete in all material respects respects. All Taxes owed by Seller (whether or not shown on any Tax return) that have become due and payable have been completed in accordance with applicable law and (b) timely paid all Taxes it paid. Seller is required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to not currently the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment beneficiary of any Tax, nor is there extension of time within which to file any Tax deficiency outstandingreturn, assessed or proposed against the Companyexcept for Seller’s federal Tax return for its fiscal year ended June 30, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated2004. No claim has ever been made by an authority in writing by any a jurisdiction where Seller does not file Tax authority returns that the Company it is or may be subject to taxation by that jurisdiction.
(ii) Seller has withheld and paid all Taxes required to have been withheld and paid in a jurisdiction in which it connection with amounts paid or owing to any employee, independent contractor, creditor, member, or other third party.
(iii) Seller has made available (or will make available through the Closing Date) to Purchaser (A) correct and complete copies of all Tax returns of Seller relating to the Assets and (B) any examination reports, statements of deficiencies and assessments by any governmental authority against or agreed to by Seller since December 31, 1998. Seller does not file expect any authority to assess additional Taxes for any period for which Tax Returnsreturns have been filed. No adjustment relating There is no dispute or claim concerning any Tax liability of Seller claimed, or to Seller’s Knowledge, threatened or otherwise raised by any authority. Seller has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax Return filed by assessment or deficiency.
(iv) There are no liens or security interests on any of the Company has been proposed by Assets that arose in connection with any Tax authorityfailure (or alleged failure) to pay any Tax, except for such liens or security interests that will be removed on or prior to the Closing Date.
(v) No property of Seller is “tax-exempt use property” within the meaning of Section 168(h) of the Code. The Company Seller is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect lease made pursuant to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(vformer Section 168(f)(8) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course Internal Revenue Code of business1954.
(vi) The Company Seller is not under any obligation to make a payment that would not be deductible under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”). Seller has made available disclosed on its Tax returns all positions taken therein that could give rise to Parent a substantial understatement (A) of federal income tax under Code Section 6662 or its legal counsel(B) of any Tax under a similar provision of state, copies local or foreign Tax law. Seller has not engaged in any transaction which would be treated as a “reportable transaction” within the meaning of all Treasury Regulations Section 1.6011-4 or otherwise been involved in a transaction which would require it to disclose a “reportable transaction.” Seller has not been a member of an affiliated group filing a consolidated federal income Tax return and other material Tax Returns does not have any liability for the Company for the prior three Taxes of any Person (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viiiSeller) The Company under Treasury Regulations Section 1.1502-6, or any similar provision of state, local or foreign law, as a transferee or successor, by contract, or otherwise. Seller has not been, at been a party to any time, Tax allocation or sharing agreement. Neither Seller nor its Subsidiaries is currently or has been a “United States Real Property Holding Corporation” real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(ixvii) Seller is and has been in full compliance with all terms and conditions of any Tax exemptions, Tax holidays or other Tax reduction agreements including, without limitation, its status as an organization described in Code Section 501(c)(3). The Company consummation of the transactions contemplated herein are not expected to have any material adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax reduction agreement or order.
(viii) Neither the Seller nor any of its Subsidiaries has not constituted either a “distributing distribution corporation” or a “controlled corporation” in a distribution of stock intended to qualify qualifying for tax‑free tax-free treatment under Code Section 355 (a) in the two years prior to the date of this Agreement or (b) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Code Section 355(c)).
(ix) Seller has not, with respect to any open taxable period, applied for and been granted permission to adopt a change in its method of accounting requiring adjustments under Section 481 of the CodeCode or comparable state or foreign law.
(x) The Company has not engaged None of Seller nor its Subsidiaries is a partner in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the 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 any entity classified as a listed transaction, as set forth partnership for federal income tax purposes (except that Seller will become a partner in Treasury Regulation Section 1.6011-4(b)(2Purchaser upon the Closing).
(xi) The Company Neither Seller nor any of its Subsidiaries has (A) never been a member of made an affiliated group (within the meaning of election under Treasury Regulations Section 1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (B) never been a party 301.7701-3 with respect to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesentity.
(xii) The Company None of Seller nor its Subsidiaries will not be required to include any item of income or gain in, or exclude any item of deduction or loss from Taxable from, taxable income for any Tax taxable period (or portion thereof thereof) ending prior to, on, or after the Closing Date as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company intercompany gain or any excess loss account under described in Treasury Regulations under Code Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any corresponding or similar provision of applicable federal state, local or foreign income Tax law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Asset Acquisition and Contribution Agreement (Horizon Health Corp /De/)
Tax Returns and Audits. (i) The Company has (a) prepared Callisto and each of its subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Callisto Returns”) relating to Taxes required to be filed by Callisto and each of its subsidiaries with any and all Taxes concerning Tax authority, except such Returns which are not material to Callisto or attributable to the Company or its operations, and such Tax which are for taxes being contested. Such Callisto Returns are true and correct in all material respects and respects, have been completed in accordance with applicable law law, and (b) timely paid all Taxes it is required shown to paybe due on such Callisto Returns have been paid. There are no liens for Taxes (other than Taxes not yet due and payable) upon any assets of Callisto or any of its subsidiaries .
(ii) The Company has paid or Callisto and each of its subsidiaries as of the Effective Time will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amounts(“FICA”), Taxes pursuant to the Federal Unemployment Tax Act amounts (“FUTA”) and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither Callisto nor any of its subsidiaries has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Callisto or proposed against the Companyany of its subsidiaries , nor has the Company Callisto or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Callisto or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Callisto or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company Callisto or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority. The Company is not a party authority to Callisto or bound by any closing of its subsidiaries or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessrepresentative thereof.
(vi) The Company Neither Callisto nor any of its subsidiaries has made available any liability for any material unpaid Taxes which has not been accrued for or reserved on Callisto Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Parent or Callisto, other than any liability for unpaid Taxes that may have accrued since the date of Callisto Balance Sheet in connection with the operation of the business of Callisto and its legal counsel, copies of all income and other material Tax Returns for subsidiaries in the Company for the prior three (3) taxable yearsordinary course.
(vii) There are (and immediately following the Effective Time there will be) is no Liens on the assets contract, agreement, plan or arrangement to which Callisto or any of its subsidiaries is a party as of the Company relating date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or attributable former employee of Callisto or any of its subsidiaries that, individually or collectively, would reasonably be expected to Taxes other than Liens give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which Callisto is a party or by which it is bound to compensate any individual for Taxes not yet due and payableexcise taxes paid pursuant to Section 4999 of the Code.
(viii) The Company Neither Callisto nor any of its subsidiaries has not beenfiled 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 Callisto or any of its subsidiaries .
(ix) Neither Callisto nor any of its subsidiaries is party to or has any obligation under any tax-sharing, at any time, a “United States Real Property Holding Corporation” tax indemnity or tax allocation agreement or arrangement.
(x) None of Callisto’s or its subsidiaries’ assets are tax exempt use property within the meaning of Section 897(c)(2168(h) of the Code.
(ixxi) The Company Neither Callisto nor any subsidiary of Callisto has not constituted participated as either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify qualifying for tax‑free tax-free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a1) prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Company, or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law law, and (b2) timely paid all Taxes it is required to paybe paid.
(ii) The Company has timely paid or withheld with respect to its Employees, stockholders Employees and other third parties, parties all U.S. federal, state and non-U.S. income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such withheld Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company is presently in progress, nor has and the Company has not been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The No claim has ever been made by a taxing authority that the Company is or may be subject to taxation by a jurisdiction where it does not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyfile Returns.
(v) As of the date of the Current Balance Sheet DateSheet, the Company does not have any Liabilities liabilities for unpaid Taxes which that have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the date of the Current Balance Sheet Date other than in the ordinary course of business. 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 No. 48 of FASB Statement No. 109.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company filed for the prior three (3) taxable yearsall periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable. The Company 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.
(viii) The Company has (1) not beenever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income tax Return, (2) not ever been a party to any Tax sharing, indemnification, allocation or similar agreement, nor does it owe any amount under such an agreement, (3) no liability for the Taxes of any person under Treasury Regulation § 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 operation of law, by contract or agreement, or otherwise or (4) not ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) The Company has never been at any time, time a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ixx) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax-free treatment under Section 355 of the Code.
(xxi) The Company has not engaged in a reportable transaction under Treasury Regulation Section Treas. Reg. § 1.6011-4(b), 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 tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section Treas. Reg. § 1.6011-4(b)(2).
(xixii) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a) tax basis of the Code) filing a consolidated federal Company in its assets for purposes of determining its future amortization, depreciation and other income Tax Return (other than a group the common parent of which was the Company), (B) never been a party to any deductions is accurately reflected on its Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), or otherwise, books and (D) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposesrecords.
(xiixiii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable taxable income for any Tax taxable period or portion thereof after the Closing Date as a result of (A1) any change in method of accounting under Section 481 of the Code for any Tax taxable period or portion thereof ending on or prior to the Closing Date, (B2) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B1) and (C2), under any similar provision of applicable law), (D3) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E4) prepaid amount received on or prior to the Closing Date.
(xiiixiv) The Company uses the cash hybrid method of accounting for income Tax tax purposes.
(xivxv) The Company is not subject to Tax in any jurisdiction other than its country of incorporation or formation by virtue of having a permanent establishment, place of business or source of income in that country.
(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 (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.
(xvxvii) Each of the Company and any predecessor to the Company has been an S corporation, within the meaning of the Code and for state Tax law purposes (except in those states which do not recognize S corporation status), at all times since inception, and has filed all forms and taken all actions necessary to maintain such status. Neither the Company, nor any predecessor to the Company, nor any Stockholder has taken any action, or omitted to take any action, which action or omission could result in the loss of S corporation status prior to the Closing.
(xviii) The Company is will 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, be liable for any Tax asset or attribute under Section 1374 of the Code in connection with the deemed sale of the Company’s assets caused by the Section 338(h)(10) Election (as defined in Section 5.16(b) hereof). The Company has not in the past 10 years, including but not limited (1) acquired assets from another corporation in a transaction in which the tax basis of the acquired assets (or any other property) was determined, in whole or in part, by reference to net operating losses and research and development credits, arising the tax basis of the acquired assets (or any other property) in any Pre-Closing Tax Period (each, a “Tax Attribute”)the hands of the transferor, or (2) acquired the ability stock of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingcorporation.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (aA) prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable required to be filed by the Company or its operationsCompany, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law in all material respects and (bB) timely paid all Taxes it is required to paypay (whether or not shown on a Tax Return) that were required to be paid on or prior to the Closing Date.
(ii) The Company has paid or withheld all amounts with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessbusiness (or recognized any extraordinary gain) since the Balance Sheet Date.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable yearsall periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable. 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 for Taxes on the assets of the Company.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability liability for the Taxes of any Person under Treasury Regulation § Section 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of any (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing DateClosing, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing DateClosing, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing DateClosing, or (E) prepaid amount received on or prior to the Closing DateClosing.
(xiii) The Company uses the cash accrual method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that such other country.
(xvi) Notwithstanding anything The Company is in this Agreement to compliance in all material respects with all applicable transfer pricing laws and regulations, including the contrary, execution and maintenance of contemporaneous documentation substantiating the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute transfer pricing practices and methodology of the Company. All intercompany arrangements have been adequately documented, and such documents have been duly executed, in a timely manner. The prices for any property or services (or for the use of any property) provided by or to the Company are arm’s length prices for purposes of all applicable transfer pricing laws, including but not limited Treasury Regulations promulgated under Section 482 of the Code.
(xvii) Section 2.10(b)(xvii) of the Disclosure Schedule sets forth the following information with respect to the Company: (A) the basis of the Company in their assets; (B) the amount of any net operating losses and research and development creditsloss, arising in any Pre-Closing Tax Period (eachnet capital loss, a “Tax Attribute”)unused investment, foreign, or other Tax credit and the ability amount of Parent 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 Treasury Regulation §1.1502-13 or any similar provision of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingapplicable Law.
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.8:
(i) The Company has (a) as of the Effective Time will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any Liability basis for Taxes since the Balance Sheet Date other than in assertion of any such liability attributable to 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 other material all state sales and use Tax Returns for all periods since the Company for the prior three (3) taxable yearsdate of Company's incorporation.
(vii) There are (and as of immediately following the Effective Time there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") on the assets of the Company relating to or attributable to Taxes 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.
(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 beenbe any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xii) The Company is not a party to a tax sharing or allocation agreement nor does the Company owe any amount under any such agreement.
(xiii) The Company is not, and has not 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.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company Company's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect accurately reflected on the continued validity Company's tax books and effectiveness of any such Tax Incentiverecords.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Neurocrine Biosciences Inc)
Tax Returns and Audits. Except as set forth in Schedule 2.8:
(i) The Company has (a) as of the Effective Time will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are will be true and correct in all material respects as of the Effective Time and will have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any Liability basis for Taxes since the Balance Sheet Date other than in assertion of any such liability attributable to 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 other material all state sales and use Tax Returns for all periods since the Company for date of the prior three (3) taxable yearsCompany's incorporation.
(vii) There are (and as of immediately following the Effective Time Date there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any sort ("LIENS") on the assets of the Company relating to or attributable to Taxes other than Liens for relating to or attributable 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.
(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 beenbe 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 404, 280G or 162 of the Code.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xii) The Company is not a party to a tax sharing or allocation agreement nor does the Company owe any amount under any such agreement.
(xiii) The Company is not, and has not 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.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Netscape Communications Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.18 hereto:
(i) The Company Company, and the Subsidiary, as applicable, has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by the Company and each of its Subsidiaries with any and all Taxes concerning or attributable Tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns which are not material to Company. To the Company’s knowledge, all such Returns are true true, correct and correct complete in all material respects respects. The Company and have been completed in accordance with applicable law and (b) timely each of its Subsidiaries has paid all Taxes it is required shown to paybe due on such Returns.
(ii) The All Taxes that the Company has paid and its Subsidiaries are required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has and its Subsidiaries have not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the Company’s knowledge, no audit or other examination of any Tax Return of the Company or any of its Subsidiaries by any Tax authority is presently in progress, nor . The Company and each of its Subsidiaries has the Company not been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company has or any of its Subsidiaries have been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company, any of its Subsidiaries or any representative thereof.
(vvi) As The Company and each of the Balance Sheet Date, the Company does not have its Subsidiaries has no liability for any Liabilities for material unpaid Taxes which have not been accrued for or reserved on the Current Balance SheetCompany’s balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, and whether asserted or unasserted, contingent or otherwise, which is material to the Company has not incurred and each of its Subsidiaries, other than any Liability liability for unpaid Taxes that may have accrued since the Balance Sheet Date other than end of the most recent fiscal year in connection with the operation of the business of the Company and each of its Subsidiaries in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is All required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes local Tax Returns of the Company and social security charges its Subsidiaries have been completely and similar feesaccurately prepared and duly and timely filed, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other all Taxes required to be paid paid, withheld or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld remitted with respect to any transaction the periods covered by such returns have been so paid, withheld or event occurring or payment made to such payees through and including the Closing Date.
(iii) remitted. The Company is not and has not been delinquent in the payment of any Tax, nor is there assessment or governmental charge. The Company has never had any Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor it and has the Company not executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit Tax or other examination of any Tax Return governmental charge. None 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim Company's Tax Returns has ever been made in writing audited by any Tax authority that governmental authorities and, to the Company knowledge of the Company, no such audit is or may currently threatened. The reserves for Taxes, assessments and governmental charges reflected on the Balance Sheet are and will be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed sufficient for the payment of all unpaid Taxes, assessments and governmental charges payable by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxesthe period ended on the Balance Sheet Date. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of Since the Balance Sheet Date, (i) neither the Company does not have nor any Liabilities for unpaid Taxes which have not been accrued of its Subsidiaries has engaged in any transaction, or reserved on the Current Balance Sheettaken any other action, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business and (ii) the Company has made adequate provisions on its books of account for all taxes, assessments and governmental charges with respect to its business.
(vi) , properties and operations for such period. The Company has withheld or collected from each payment made available to Parent each of its employees, creditors, independent contractors or its legal counselother third parties, copies the amount of all Taxes (including, without limitation, federal income taxes, Federal Insurance Contribution Act taxes and other material Federal Unemployment Tax Returns Act taxes) required to be withheld or collected therefrom, and has paid the same to the proper Tax receiving officers or authorized depositories. No Liens for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the Taxes exist with respect to any assets or properties of the Company relating or attributable to Taxes other than and its Subsidiaries, except for statutory Liens for Taxes not yet due and payable.
(viii) The , and the Company has not beenand its Subsidiaries have no knowledge of any claim relating to Taxes that, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) Lien on any of the Code.
(ix) The Company has not constituted either a “distributing corporation” assets or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment under Section 355 properties of the Code.
Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries (xi) The Company is a party to or bound by any written Tax sharing, Tax indemnity or similar agreement with respect to Taxes pursuant to which it will have any obligation to make any payment after the Closing Date, or (ii) has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one any liability for Taxes of any person (other than members of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by noticeaffiliated group, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 tax returns of which the Company is the common parent of which was the Company), (Bparent) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § ss. 1.1502-6 (6, Treasury Regulation ss. 1.1502-78 or similar provision of state, local or foreign law, as a transferee or successor, by contract, or otherwise. The Company and each of its Subsidiaries have provided or otherwise made available to Investor complete and accurate copies of all Tax Returns, examination reports and statements of deficiencies for all open years. Neither the Company nor any of its Subsidiaries has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision of state, local or non-U.S. foreign law. There is no contract, including agreement, plan, or arrangement covering any arrangement for group person that, individually or consortium relief or similar arrangement)collectively, as a transferee or successor, by operation of law, by contract (other than pursuant could give rise to the customary provisions payment of an agreement entered into in any amount that would not be deductible by the ordinary course Company or any of business its Subsidiaries by reason of Section 280G of the primary purpose Code. None of which the Company and its Subsidiaries is not related to Taxes), or otherwise, and (D) never been a party to any joint venturecontract, partnership agreement, or other agreement arrangement which could result in the payment of amounts that could be treated as a partnership nondeductible by reason of Section 162(m) of the Code. There are no requests for rulings or determinations in respect of any Tax purposes.
(xiior Tax Asset) The pending between the Company will not be or any of its Subsidiaries and any taxing authority. Neither the Company nor any of its Subsidiaries has agreed to or is required to include make any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting adjustments under Section section 481 of the Code for by reason of a change of accounting method or otherwise. None of the respective assets of the Company or any Tax period of its Subsidiaries is required to be treated as being owned by any person, other than the Company or portion thereof ending on or prior any of its Subsidiaries, pursuant to the Closing Date, (B"safe harbor" leasing provisions of Section 168(f)(8) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) Code. The Company is not subject to Tax a "United States real property holding corporation" (a "USRPHC") as that term is defined in any country other than its country Section 897(c)(2) of incorporation or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, Code and the regulations promulgated thereunder. Neither the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or nor any of its affiliates Subsidiaries knows of any change in the rates or basis of assessment of any tax (other than federal income tax), of the Company and its Subsidiaries which would reasonably be expected to have a Material Adverse Effect. As used in this Agreement, "Taxes" shall include (i) all federal, state, local or foreign and other taxes, levies, fees, charges or assessments including the Surviving Corporationwithout limitation, all net income, gross income, franchise, profit or gross receipts, ad valorem, capital gains, sales, use, real, or personal property, capital stock, license, payroll, estimated withholding, employment, compensation, utility, severance, production, excise, stamp, occupation, transfer and gains taxes, and customs duties, and includes any interest or penalties on or additions to any such taxes, and (ii) any transferee liability in respect of any items described in clause (i) above. As used in this Agreement, "Tax Return" means report, return, claim for refund or other written information required to utilize such Tax Attributes after the Closingbe supplied to a taxing authority in connection with Taxes, including any schedule or attachment thereto or amendment thereof.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Collagenex Pharmaceuticals Inc)
Tax Returns and Audits. Except as set forth in the Procept Disclosure Schedule:
(i) The Company Procept has (a) prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") required to be filed relating to any and all Taxes concerning or attributable to the Company Procept or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in all material respects in accordance with applicable law and (b) timely paid all or, with respect to any Taxes it is required to paypayable, an adequate reserve has been established on the Procept Interim Balance Sheet.
(ii) The Company Procept: (A) has paid or accrued all Taxes set forth on its Returns, and (B) has withheld and paid (or will pay at the time required) with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has Procept is not been delinquent in any material respect in the payment of any Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyProcept, nor has the Company Procept executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No Other than the audits set forth in the Procept Disclosure Schedule, no audit or other examination of any Tax Return of the Company Procept is presently currently in progress, nor has the Company Procept been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Procept did not have, as of the Balance Sheet DateSeptember 30, the Company does not have 1998, any Liabilities liabilities, whether asserted or unasserted, contingent or otherwise, for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Procept Interim Balance Sheet, and the Company Procept has not incurred any Liability for Taxes such liabilities since the Balance Sheet Date other than such date except in the ordinary course of businessbusiness and consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and as of immediately following the Effective Time Date there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") of a material nature on the assets of the Company Procept relating to or attributable to Taxes other than Taxes, except for Liens for Taxes not yet due and payablepayable or that are being contested in good faith by appropriate proceedings.
(vii) Procept has not received written or oral notice of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of Procept.
(viii) The Company None of Procept's assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(ix) 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 Procept that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code or the limitations in Sections 162 of the Code.
(x) Procept has not been, 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 Procept.
(xi) Procept is not a party to a tax sharing or allocation agreement nor does Procept owe any amount under any such agreement.
(xii) Procept is not nor has been at any timetime during the period specified in Section 897(c)(1)(A)(ii) of the Code, a “"United States Real Property Holding Corporation” real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(ixxiii) The Company Procept has not constituted either a “distributing corporation” agreed to, or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment is required to, make any adjustments under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a481(c) of the Code) filing Code by reason of a consolidated federal income Tax Return (other than a group the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into change in the ordinary course of business the primary purpose of which is not related to Taxes), accounting method 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and its Subsidiaries have timely filed or will timely file all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Company, the Subsidiaries or its their respective operations, and such Tax Returns are (or will be when filed) true and correct in all material respects and have been completed (or will have been when filed) in accordance with applicable law and (b) timely paid in all Taxes it is required to paymaterial respects.
(ii) The Company has and its Subsidiaries have paid or all Taxes they are required to pay and have withheld with respect to its Employees, stockholders their Employees and other third parties, persons (and timely paid over to the appropriate Taxing authority) all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts(“FICA”), Federal Unemployment Tax Act amounts (“FUTA”) and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Except as reserved in the Current Balance Sheet, the Company has not been delinquent in the payment of any Tax, nor nor, to the Company’s knowledge, is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company or any Subsidiary executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any Subsidiary is presently currently in progress, nor has the Company or any Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not and its Subsidiaries have any Liabilities no material liabilities for unpaid federal, state, local or foreign Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has and its Subsidiaries have not incurred any Liability liability for Taxes since the Balance Sheet Date December 31, 2002 other than in the ordinary course of business.
(vi) The Company has and its Subsidiaries have made available to Parent or its legal counsel, counsel copies of all foreign, federal, state and local income and other material Tax all state and local sales and use Returns for the Company and its Subsidiaries filed for the prior three (3) taxable yearsall periods since its inception.
(vii) There are (and immediately following the Effective Time there will be) no 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 payableTaxes.
(viii) The Company and its Subsidiaries have not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(4) of the Code apply to any disposition of a subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the Company or any Subsidiary.
(ix) The Company and its Subsidiaries have (A) never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (B) never been party to any tax sharing, indemnification or allocation agreement, (C) no liability for the Taxes of any person, corporation or other entity (other than Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or agreement, or otherwise and (D) never been party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(x) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party No adjustment relating to any Tax sharing, indemnification or allocation agreement, nor does Return filed by the Company owe or its Subsidiaries has been proposed formally or informally in writing by any amount under any such agreement, (C) no Liability for Governmental Entity to the Taxes of any Person under Treasury Regulation § 1.1502-6 (Company or any similar provision of state, local Subsidiary or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesrepresentative thereof.
(xii) No claim or action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel is pending or, to the Company’s knowledge, has been threatened against or with respect to the Company or any Subsidiary in respect of any material Tax.
(xiii) The Company and its Subsidiaries have not been and will not be required to include any income or gain or exclude any deduction or loss from Taxable material adjustment in taxable income for any Tax tax period (or portion thereof after the Closing as a result of (Athereof) any change in method of accounting under pursuant to Section 481 of the Code for or any comparable provision under any Tax period laws as a result of transactions or portion thereof ending on events occurring, or accounting methods employed, prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto, to the best of each Member’s knowledge and belief:
(i) The Company Each of the EXCHANGING COMPANIES has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements estimates and reports (“Tax Returns”) relating to Taxes ("Returns") required to be filed by either of the EXCHANGING COMPANIES with any and all Taxes concerning or attributable Tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns which are not material to either of the EXCHANGING COMPANIES. All such Returns are true true, correct and correct complete in all material respects and have been completed in accordance with applicable law and (b) timely respects. Both of the EXCHANGING COMPANIES has paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid All Taxes that either of the EXCHANGING COMPANIES is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company Neither of the EXCHANGING COMPANIES has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against either of the CompanyEXCHANGING COMPANIES, nor has either of the Company EXCHANGING COMPANIES executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of either of the Company EXCHANGING COMPANIES by any Tax authority is presently in progress, nor has either of the Company EXCHANGING COMPANIES been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by either of the Company EXCHANGING COMPANIES has been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to either of the EXCHANGING COMPANIES or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As Neither of the Balance Sheet Date, the Company does not EXCHANGING COMPANIES have liability for any Liabilities for material unpaid Taxes which have not been accrued for or reserved on either of the Current Balance SheetEXCHANGING COMPANIES balance sheet whether asserted or unasserted, and contingent or otherwise, which is material to either of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable yearsEXCHANGING COMPANIES.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets Neither of the Company relating EXCHANGING COMPANIES has taken any action and does not know of any fact, agreement, plan or attributable other circumstance that is reasonably likely to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, prevent the Transaction from qualifying as a “United States Real Property Holding Corporationreorganization” within the meaning of Section 897(c)(2368(a) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) As of the Closing, the Seller will have prepared or caused to be prepared and timely filed or caused to be filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") due on or before the Closing relating to any and all Taxes --------- concerning or attributable to the Company Seller or its operationsoperations and, and to the extent Buyer would be adversely affected, such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law.
(bii) timely As of the Closing, the Seller (A) will have paid or accrued all Taxes it is required to pay.
(ii) The Company has paid pay or accrue and will have withheld or caused to be withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such (B) will have accrued on the Current Balance Sheet all Taxes over attributable to the appropriate authorities, periods covered by the Current Balance Sheet and will pay or withhold (and pay over) such not have incurred any liability for Taxes that are required for the period prior to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateother than in the ordinary course of business.
(iii) The Company Seller has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, assessed or proposed against the CompanySeller, nor has the Company Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Seller is presently in progress, nor has the Company Seller been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities The Seller has no liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesswhether asserted or unasserted, contingent or otherwise.
(vi) The Company Seller has made available to Parent Buyer or its legal counsel, copies of all foreign, federal and state income and other material Tax all state sales and use Returns for the Company Seller filed for the prior three (3) taxable yearsall periods since its inception.
(vii) There are (and immediately following the Effective Time Closing there will be) no Liens liens, pledges, charges, claims, restrictions on transfer, mortgages, security interests or other encumbrances of any sort (collectively, "Liens") on the assets of the Company Seller relating to or attributable to Taxes other ----- than Liens for Taxes not yet due and payable.
(viii) The Company Neither the Seller nor the Principal Stockholders has not beenKnowledge of any basis for the assertion of any claim relating or attributable to Taxes which, at if adversely determined, would result in any timeLien on the assets of the Seller.
(ix) None of the Seller's assets are treated as "tax-exempt use --------------- property", a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2168(h) of the Code. --------
(x) There is no contract, agreement, plan or arrangement to which the Seller is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Seller, individually or collectively, that 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.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company Seller 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 of an affiliated group asset (within the meaning of as defined in Section 1504(a341(f)(4) of the Code) filing a consolidated federal income Tax Return owned by the Seller.
(other than a group the common parent of which was the Company), (Bxii) never been The Seller is not a party to any Tax tax sharing, indemnification or allocation agreement, agreement nor does the Company Seller owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Datethis Agreement.
(xiii) The Company uses No adjustment relating to any Return filed by the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemptionSeller has been proposed formally or, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and to the consummation Knowledge of the transactions contemplated Seller or the Principal Stockholders, informally by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement tax authority to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, Seller or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingrepresentative thereof.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has and the Company Subsidiaries (a) have prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all material Taxes concerning or attributable to of the Company or its operations, (including the Company’s Subsidiaries) and such Tax Returns are true and correct in all material respects and have been or will be completed in accordance with all applicable law and Legal Requirements (b) will prepare and timely file all Returns required to be filed by the Company or a Company Subsidiary prior to the Closing Date, and when filed, such Returns shall be true and correct in all material respects and will be completed in accordance with all applicable Legal Requirements, (c) have timely paid in full all Taxes it that the Company or a Company Subsidiary is required to paypay except for Taxes being contested in good faith in appropriate proceedings and for which adequate reserves have been established on the Financial Statements and (d) will timely pay in full all Taxes that the Company or a Company Subsidiary is required to pay prior to the Closing Date. Neither the Company nor any Company Subsidiary currently is the beneficiary of any extension of time within which to file any Return. No claim has ever been made in writing by an authority in a jurisdiction where the Company or any Company Subsidiary does not file Returns that the Company or any Company Subsidiary is or may be subject to taxation in that jurisdiction. There are (and immediately following the Effective Time there will be) no security interests or other Liens on any of the assets of the Company or any Company Subsidiary relating to or attributable to Taxes, other than Permitted Encumbrances.
(ii) The Company and each Company Subsidiary has withheld or paid or withheld to the appropriate authorities, with respect to its Employees, stockholders and other third partiesThird Parties, all Taxes required to be so withheld or paid, including, without limitation, all U.S. federal, state and non-U.S. income Taxes taxes and social security charges and similar fees, such as taxes and fees under the Federal Insurance Contribution Act amounts, and Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldAct, and has timely paid over any such Taxes over to the appropriate authorities, complied in all material respects with all associated reporting and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Daterecordkeeping requirements.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has Neither the Company nor any of the Company Subsidiaries has executed any waiver of any statute of limitations on or extending agreed to or requested any extension of the period for the assessment or collection of any Tax.material Tax which such waiver or extension is currently in effect. [*] Confidential treatment requested. 40 CONFIDENTIAL TREATMENT REQUESTED
(iv) No audit or other examination of any Tax Return of the Company or any of the Company Subsidiaries is presently currently in progress, nor has the Company or any of the Company Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Neither the Company nor any of the Company Subsidiaries had as of the Balance Sheet Date, the Company does not have Date any Liabilities liabilities for unpaid Taxes which have were not been accrued or reserved on the Current Balance Sheet, and the Financial Statements. The Company has not incurred any Liability for Taxes Tax liability since the Balance Sheet Date other than in the ordinary course Ordinary Course of businessBusiness.
(vi) The Company has provided or made available to Parent Acquiror or its legal counsel, counsel copies of all income and other material Tax Returns for the Company for and the prior three (3) taxable yearsCompany Subsidiaries filed after December 31, 2004.
(vii) There are (and immediately following the Effective Time there will be) no Liens on None of the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payableany of the Company Subsidiaries is treated as “tax exempt use property,” within the meaning of Section 168(h) of the Code.
(viii) Neither the Company nor any of the Company Subsidiaries has (a) 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 an affiliated group consisting of the Company and the Company Subsidiaries, (b) ever been a party to any Tax sharing, indemnification or allocation agreement and (c) ever been subject to any liability for the Taxes of any Person (other than Company or the Company Subsidiaries), under Treasury Regulations 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). Neither the Company nor any Company Subsidiary is a party to any joint venture, partnership, other arrangement or contract which could be treated as a partnership for federal income Tax purposes.
(ix) The Company 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.
(ixx) The Neither the Company nor any of the Company Subsidiaries has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax free treatment under Section 355 of the Code.
(xxi) The Neither the Company nor any Company Subsidiary has agreed or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or foreign Legal Requirement by reason of a change in accounting method initiated by it or any other relevant party, and the IRS has not engaged proposed any such adjustment or change in accounting method in writing, nor does the Company or any Company Subsidiary have any application pending with any Governmental Entity requesting permission for any changes in accounting methods that relate to the business or assets of the Company or such Company Subsidiary. [*] Confidential treatment requested. 41 CONFIDENTIAL TREATMENT REQUESTED
(xii) No closing agreement pursuant to Section 7121 of the Code (or any predecessor provision) or any similar provision of any state, local or foreign Law has been entered into by or with respect to the Company or any Company Subsidiary.
(xiii) Neither the Company nor any Company Subsidiary has participated in a “reportable transaction under transaction” within the meaning of Treasury Regulation Section 1.6011-4(b), including 4(b)(1) or taken a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be reporting position on a Tax avoidance transaction and identified by noticeReturn that, regulationif not sustained, or other form would be reasonably likely to give rise to a penalty for substantial understatement of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 under Section 6662 of the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 Code (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xiixiv) The There is no agreement, plan, arrangement or other Contract covering any current or former employee (including any officer), consultant, independent contractor or director of the Company or any Person under common control with the Company (within the meaning of Sections 414(b), 414(c), 414(m) and 414(o) of the Code, and the regulations thereunder) that, individually or collectively, could give rise directly or indirectly to the payment of any amount or the provision of any benefit that would not be deductible pursuant to Section 280G or Section 162 of the Code.
(xv) Neither the Company nor any Company Subsidiary will not be required to include any in its taxable income or gain or exclude any deduction or loss from Taxable income for any Tax in a period or portion thereof after the Closing as Date any amount that is attributable to (a) a result of (A) any change in transaction that is being accounted for under the installment method of accounting under Section 481 453 of the Code for or similar provision of state, local or foreign law, (b) the Company or any Tax period Company Subsidiary being, or portion thereof ending on ceasing to be, part of an Affiliated Group or (c) any prepaid amount received or other transaction or event that occurred prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on other than amounts, transactions or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or events occurring in the case Ordinary Course of each of (A), (B) and (C), under any similar provision of Business for which the applicable law), (D) installment sale income amount or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company liability is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect reflected on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that countryFinancial Statements.
(xvi) Notwithstanding anything Neither the Company nor any Company Subsidiary has ever engaged in this Agreement activities constituting a trade or business or permanent establishment (as defined in the applicable income tax treaty) in a foreign country, and neither the Company nor any Company Subsidiary is required to file Returns or pay Taxes in a country other than the United States.
(xvii) None of the Company Subsidiaries is organized under the laws of any jurisdiction outside the United States.
(xviii) Section 2.11(b)(xviii) of the Disclosure Schedule lists all tax holidays and similar tax benefits which have current applicability to the contraryCompany and each Company Subsidiary. The Company and each Company Subsidiary is currently in compliance with the requirements for all such tax holidays and similar tax benefits, the Company makes no representations and have been in compliance since such holiday or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize benefit was originally claimed by such Tax Attributes after the Closing.entity. [*] Confidential treatment requested. 42 CONFIDENTIAL TREATMENT REQUESTED
Appears in 1 contract
Tax Returns and Audits. (i) The 1. As of the Effective Time, except as set forth in Section 2.10 of the Company has (a) Disclosure Letter each of the Company and its subsidiaries will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company or any of its subsidiaries or their operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law law.
2. As of the Effective Time, each of the Company and its subsidiaries (bA) timely will have paid all Taxes it is required to pay.
(ii) The Company has paid or pay and will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders FICA and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act FUTA amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such (B) will have accrued on the Current Balance Sheet all Taxes over attributable to the appropriate authorities, periods preceding the Current Balance Sheet and will pay or withhold (not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and pay over) such Taxes that are required ending immediately prior to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateEffective Time, other than in the Ordinary Course of the Company's Business.
(iii) 3. The Company or any of its subsidiaries has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) 4. No audit or other examination of any Tax 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, and .
5. Neither the Company does not have Knowledge that nor any such action or proceeding is being contemplated. No claim of its subsidiaries has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the date of the Current Balance Sheet Date other than in the ordinary course Ordinary Course of businessthe Company Business.
(vi) 6. The Company has made available to Parent Sybase or its legal counsel, copies of all foreign, federal, state and local income and other material Tax all state and local sales and use Returns for the Company or any of its subsidiaries filed for the prior three (3) taxable yearsall periods since its inception.
(vii) 7. There are (and immediately following the Effective Time there will be) no 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.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party 8. No adjustment relating to any Tax sharing, indemnification or allocation agreement, nor does Return filed by the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including subsidiaries has been proposed formally or, to the Surviving Corporation) Knowledge of the Company and the Principal Shareholders, informally by any tax authority to utilize such Tax Attributes after the ClosingCompany or any of its subsidiaries or any representative thereof.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 2.7 of the OrCAD Schedules:
(i) The Company has (a) OrCAD and each of its subsidiaries have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any and all Taxes concerning or attributable to the Company OrCAD and each of its subsidiaries or its operations, their operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law law.
(ii) OrCAD and each of its subsidiaries (bA) timely have paid or accrued all Taxes it is required to pay.
pay or accrue and (iiB) The Company has paid or have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither OrCAD nor any of its subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed against OrCAD or proposed against the Companyany of its subsidiaries, nor has the Company OrCAD or any of its subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company OrCAD or any of its subsidiaries is presently in progress, nor has the Company OrCAD or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Neither OrCAD nor any of the Balance Sheet Date, the Company does not have its subsidiaries has any Liabilities material liability for unpaid federal, state, local or foreign Taxes which have has not been accrued or reserved against in accordance with GAAP on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the OrCAD Balance Sheet Date other than or accrued in accordance with GAAP in the ordinary course of businessbusiness since the date of the OrCAD Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither OrCAD nor any of its subsidiaries has knowledge of any basis for the assertion of any such liability attributable to the assets or operations of OrCAD or any of its subsidiaries.
(vi) The Company OrCAD has made available provided to Parent or its legal counsel, Summit copies of all federal and state income and other material all state sales and use Tax Returns for all periods since the Company for date of OrCAD's incorporation, except those as to which applicable statues of limitations have expired and no tolling of the prior three (3) taxable yearsstatute of limitations has been executed.
(vii) There are no liens, pledges, charges, claims, security interests or other encumbrances of any sort (and immediately following the Effective Time there will be"LIENS") no Liens on the assets of OrCAD or any of its subsidiaries relating to or attributable to Taxes.
(viii) Neither OrCAD nor any of its subsidiaries has knowledge of any basis for the Company assertion of any claim relating or attributable to Taxes other than Liens for Taxes not yet due and payablewhich, if adversely determined, would result in any Lien on the assets of OrCAD or any of its subsidiaries.
(viiiix) The Company None of OrCAD's or any of its subsidiaries' assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(x) There is no contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of OrCAD or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G or 162 of the Code.
(xi) Neither OrCAD nor any of its subsidiaries has not been, 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 OrCAD or any of its subsidiaries.
(xii) Neither OrCAD nor any of its subsidiaries is a party to a tax sharing or allocation agreement nor does OrCAD nor any of its subsidiaries owe any amount under any such agreement.
(xiii) Neither OrCAD nor any of its subsidiaries has 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.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i1) The Company has (a) AmeriNet and its subsidiaries have accurately prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning relating or attributable to the Company AmeriNet or its operations, subsidiaries or their operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law in all material respects.
(2) AmeriNet and (b) its subsidiaries have timely paid all Taxes it is required to pay.
(ii) The Company has be paid or with respect to such Returns and have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that they are required to be paid withhold.
(3) The accruals for Taxes on the books and records of AmeriNet and its subsidiaries are sufficient to discharge the Taxes for all periods (or withheld with respect the portion of any period) ending on or prior to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii4) The Company has AmeriNet and its subsidiaries have not been delinquent in the payment of any TaxTax nor, nor except as disclosed in the Exchange Act Reports, is there any Tax deficiency outstanding, proposed or assessed against AmeriNet or proposed against the Companyits subsidiaries, nor has the Company AmeriNet or its subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv5) Except as disclosed in the Exchange Act Reports:
(a) No audit or other examination of any Tax Return of the Company AmeriNet or its subsidiaries is presently in progress.
(b) AmeriNet and its subsidiaries do not have any liabilities for unpaid federal, nor has the Company been notified in writing state, local and foreign Taxes, whether asserted or unasserted, known or unknown, contingent or otherwise and AmeriNet and its subsidiaries have no knowledge of any request basis for such an audit or other examination, and the Company does not have Knowledge that assertion of any such action liability attributable to AmeriNet or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is its subsidiaries, or may be subject to taxation in a jurisdiction in which it does their respective assets or operations.
(6) AmeriNet and its subsidiaries are not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party parties to or bound by any closing tax indemnity, tax sharing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companytax allocation agreement.
(v7) As AmeriNet and its subsidiaries have provided, or made available to Vista Vacations or its legal counsel copies of the Balance Sheet Dateall federal, the Company does not have any Liabilities provincial and state income and all sales and use Tax Returns of AmeriNet or its subsidiaries for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheetall periods since January 1, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business1998.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) 8) There are (and as of immediately following the Effective Time Closing Date there will be) no Liens liens on the assets of the Company AmeriNet or its subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii9) The Company has not beenAmeriNet and its subsidiaries have no knowledge of any basis for the assertion of any Tax claim which, at any timeif adversely determined, a “United States Real Property Holding Corporation” within would result in liens on the meaning assets of Section 897(c)(2) of the CodeAmeriNet or its subsidiaries.
(ix10) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)There is no contract, including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (plan or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development creditsthe provisions of this Agreement, arising in covering any Pre-Closing Tax Period (eachemployee or former employee of AmeriNet or its subsidiaries that, a “Tax Attribute”)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 ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all All income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating Returns required to any and all Taxes concerning be filed by or attributable to on behalf of the Company or and its operations, Subsidiaries have been duly filed on a timely basis and such Tax Returns are true were complete and correct in all material respects and respects. Except as disclosed in Section 2.11 of the Disclosure Schedule, all Taxes shown to be payable on the Returns or on subsequent assessments with respect thereto have been completed paid in accordance full on a timely basis, or have been accrued for on the Company Balance Sheet and no other material Taxes are payable by the Company or its Subsidiaries with applicable law respect to items or periods covered by such Returns. Each of the Company and (b) its Subsidiaries has timely paid all installments on account of Taxes it is required to payfor the current year that are due and payable. Adequate provision for the payment of all Taxes of the Company and each of its Subsidiaries in respect of all periods ending on or before the Closing Date has been made.
(ii) The Company has and its Subsidiaries have paid or withheld provided adequate accruals for Taxes as at December 31, 2008, in conformity with respect to its Employees, stockholders GAAP applied on a basis consistent with those of prior years and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability liabilities for Taxes since the Balance Sheet Date such date other than in the ordinary course of business.
(viiii) The Company has and its Subsidiaries have made available to Parent true and complete copies of: (i) material portions of income tax audit reports, statements of deficiencies, closing or other agreements received by the Company and its legal counselSubsidiaries or on behalf of the Company and its Subsidiaries relating to Taxes; and (ii) all material federal, copies of all income and other material Tax Returns provincial, state, local or foreign income, sales or franchise tax returns for the Company and its Subsidiaries, for the prior three (3) taxable yearsperiods ending on or after December 31, 2003.
(viiiv) There No material deficiencies have been asserted in writing by any Governmental Entity with respect to Taxes paid by the Company and its Subsidiaries. Except as disclosed in Section 2.11(b)(iv) of the Disclosure Schedule, neither the Company nor its Subsidiaries are (and immediately following party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or threatened in writing against the Effective Time there will be) no Liens on the assets Company or its Subsidiaries or any of their assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of the Company and its Subsidiaries. There is no audit in process, pending or, to the knowledge of the Company, threatened by a Governmental Entity or taxing authority relating to the Returns of the Company or attributable its Subsidiaries. No claim has ever been made in writing that the Company or any of its Subsidiaries is or may be subject to Taxes other than Liens for Taxes taxation in the jurisdiction in which it does not yet due and payablefile Returns.
(viiiv) Except as disclosed in Schedule 2.11(b)(v), the Company and its Subsidiaries have withheld from each payment made to any of their present or former employees, officers and directors, and to all persons who are non-residents of Canada for the purposes of the Tax Act all amounts required by law and will continue to do so until the Effective Date and has remitted such withheld amounts within the prescribed periods to the appropriate Governmental Entity. The Company has not beenand its Subsidiaries have remitted all Canada pension plan and provincial pension plan contributions, at any timeemployment insurance premiums, a “United States Real Property Holding Corporation” employer health taxes and other Taxes payable by them in respect of their employees and have or will have remitted such amounts to the proper governmental authority within the meaning of Section 897(c)(2) of time required by applicable law. The Company and its Subsidiaries have charged, collected and remitted on a timely basis all Taxes as required by applicable law on any sale, supply or delivery whatsoever, made by the CodeCompany and its Subsidiaries.
(ixvi) The Neither the Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution nor any of stock intended to qualify for tax‑free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company its Subsidiaries has (Aa) never 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 Affiliated Group (other than a group the common parent of which was the Company), (Bb) never ever been a party to any Tax sharing, indemnification indemnification, allocation or allocation agreement, nor does the Company owe any amount under any such agreementsimilar Contract, (Cc) no Liability any liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement)person, as a transferee or successor, by operation of law, by contract Contract, or otherwise (other than pursuant to members of the customary provisions of an agreement entered into in group the ordinary course of business the primary purpose common parent of which is not related to Taxesthe Company), 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.
(xiivii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after To the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute knowledge of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or neither the ability of Parent or Company nor any of its affiliates (including Subsidiaries has been or is currently a “controlled foreign corporation” within the Surviving Corporation) to utilize such Tax Attributes after meaning of Section 957 of the ClosingCode or a “passive foreign investment company” within the meaning of Section 1297 of the Code.
Appears in 1 contract
Samples: Arrangement Agreement (Nuance Communications, Inc.)
Tax Returns and Audits. (i) The As of the Effective Time, the Company has (a) will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company or its operationsoperations and, to the knowledge of the Company, Ades and Shareholder such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law. The Company as of the Effective Time: (bA) timely will have paid or accrued all Taxes it is required to pay.
(ii) The Company pay or accrue and, with regard to periods covered by filed Returns, it has paid or all taxes required to be paid as shown on such Returns, (B) will have withheld with respect to its Employees, stockholders and other third parties, employees all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld. With regard to the Company's 1998 tax year, and the Company has timely paid over and properly filed an extension in which to file its federal and state Returns and Ades and the Shareholder will properly complete such Returns and the Company will not be obligated to pay any taxes when such Taxes over Returns are filed which have not already been paid. Ades and the Shareholder agree not to take any position adverse to the appropriate authoritiesCompany, the Surviving Corporation or the Parent on the 1998 Returns and will pay or withhold (and pay over) such Taxes that are required shall be responsible for any tax liability relating to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) 1998 Returns for the Company. The Company has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) . No audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities liabilities for unpaid Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred no knowledge of any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets reasonable basis of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness assertion of any such Tax Incentive.
(xv) The Company is not subject liability attributable 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.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), its assets or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingoperations.
Appears in 1 contract
Tax Returns and Audits. (i) The Company Target, and any consolidated, combined, unitary or aggregate group for Tax purposes of which Target, Parent or any of their subsidiaries is or has (a) been a member, as of the Closing will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any and all Taxes concerning or attributable to Target or the Company Business or its operationssuch group of companies, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law.
(bii) timely Target as of the Closing: (A) will have paid all Taxes it is required to pay.
(ii) The Company has paid or pay and will have withheld with respect to its Employees, stockholders employees all federal and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act amounts("FICA"), Federal Unemployment Tax Act amounts ("FUTA") and other Taxes required to be paid or withheld, and (B) has timely paid over any such accrued on the Target Balance Sheet all Taxes over attributable to the appropriate authorities, periods prior to the Target Balance Sheet and will pay or withhold (not have incurred any liability for Taxes for the period after the Target Balance Sheet Date and pay over) such Taxes that are required prior to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateother than in the ordinary course of business.
(iii) The Company Target has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or, to the knowledge of Target or Parent, proposed against the CompanyTarget, nor has the Company Target executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Target is presently in progress, nor has the Company Target been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities Target has no liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved on the Current Target Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company Target has not incurred any Liability liability for Taxes since the date of the Target Balance Sheet Date other than in the ordinary course of business.
(vi) The Company Target has made available to Parent Acquiror or its legal counsel, copies of all foreign, federal, state and local income and other material Tax all state and local sales and use Returns for the Company Target filed for the prior three (3) taxable yearsall periods since its inception.
(vii) There are (and immediately following the Effective Time Closing there will be) no Liens on the assets of the Company Target relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company Neither Target nor Parent 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 Target.
(ix) None of Target's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(x) Target has not beenfiled 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 Target.
(xi) Target is not a party to any tax sharing, indemnification or allocation agreement nor does Target owe any amount under any such agreement.
(xii) Target's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income Tax deductions is accurately reflected on Target's tax books and records.
(xiii) Target 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.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated group ("personal holding company" within the meaning of Section 1504(a) 542 of the Code. 12
(xiv) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (B) never been a party No adjustment relating to any Tax sharing, indemnification Return filed by Target has been proposed to Target formally or allocation agreement, nor does the Company owe informally by any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (tax authority to Target or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesrepresentative thereof.
(xiixv) The Company Target files its income Tax Returns on the accrual basis.
(xvi) Target has not been and will not be required to include any income or gain or exclude any deduction or loss from material adjustment in Taxable income for any Tax period pursuant to Section 481 or portion thereof after 263A of the Closing Code or any comparable provision under state or foreign laws as a result of transactions, events or accounting methods employed prior to the Closing.
(Axvii) Neither Target nor any change in method of accounting its subsidiaries has filed any disclosure under Section 481 6662 of the Code for or comparable provisions of state, local or foreign law to prevent the imposition of penalties with respect to any Tax period or portion thereof ending reporting position taken on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday return 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 Incentivereport.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 3.6 of the Company Schedules:
(i) The Company has (a) and its Subsidiary as of the Merger Effective Time will have prepared and filed on a timely filed basis, all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports due to be filed on or before the Merger Effective Time (“Tax Returns”"RETURNS") relating to any and all Taxes concerning or attributable to the Company Company, its Subsidiary or its their operations, and such Tax Returns are true true, correct and correct in all material respects complete and have been completed in accordance with applicable law law.
(ii) The Company and its Subsidiary as of the Merger Effective Time: (bA) timely will have paid all Taxes it is required to pay.
pay for any Pre-closing Period and (iiB) The Company has paid or will have withheld with respect to its Employeesemployees (and timely remitted to the appropriate taxing authority) all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor its Subsidiary has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or its Subsidiary of which the Company has heretofore been given notice, nor has the Company or its Subsidiary executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or its Subsidiary of which the Company has heretofore been given notice, is presently in progress, nor has the Company or its Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, Neither the Company does not have nor its Subsidiary has any Liabilities liabilities for unpaid Taxes with respect to any Pre-closing Period which have not been accrued or reserved against on the Current Company Balance Sheet, whether asserted or unasserted, contingent or otherwise, and neither the Company nor its Subsidiary has not incurred any Liability liability for Taxes since the date of the Company Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all federal, foreign and state income and other material all state sales and use Tax Returns for the Company and its Subsidiary filed for the prior three (3) taxable yearsall periods since its inception.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") on the assets of the Company or its Subsidiary relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” None of the Company's or its Subsidiary's assets are treated as "tax- exempt use property" within the meaning of Section 897(c)(2168(h) of the Code.
(ix) The As of the Merger 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 has or its Subsidiary that, individually or collectively, could give rise to the payment of any amount that would not constituted either a “distributing corporation” be deductible pursuant to Sections 280G or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment under Section 355 404 of the Code.
(x) The Neither the Company nor its Subsidiary has not engaged in a reportable transaction filed any consent agreement under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 341(f) of the types Code or agreed to have Section 341(f)(2) of transactions that the Internal Revenue Service has determined Code apply to be any disposition of a Tax avoidance transaction and identified subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by notice, regulation, the Company or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)its Subsidiary.
(xi) The Neither the Company nor its Subsidiary has (A) never ever been a member of an affiliated group (within the meaning of Section 1504(a) of the CodeCode ss.1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), (B) never ever been a party to any Tax sharing, indemnification a tax sharing or allocation agreement, agreement (nor does the Company or its Subsidiary owe any amount under any such agreement), (C) no Liability any liability for the Taxes of any Person person (other than Company or its Subsidiary) under Treasury Regulation § Treas. Reg. ss. 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)or agreement, or otherwise, otherwise and (D) never ever been a party to any joint venture, partnership or other agreement that arrangement that, to the knowledge of the Company, could be treated as a partnership for Tax purposes.
(xii) The Neither the Company will not be required to include nor its Subsidiary is, or has been at any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after time, a "United States real property holding corporation" within the Closing as a result meaning of (ASection 897(c)(2) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateCode.
(xiii) The No adjustment relating to any Return filed by the Company uses or its Subsidiary has been proposed in writing by any tax authority to the cash method of accounting for income Tax purposesCompany or its Subsidiary or any representative thereof.
(xiv) The Neither the Company is nor its Subsidiary has constituted either a "distributing corporation" or a "controlled corporation" in full compliance with all terms and conditions a distribution of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation stock intended to qualify for tax-free treatment under Section 355 of the transactions contemplated by Code (A) in the two years prior to the date of this Agreement will not have any adverse effect on or (B) in a distribution which could otherwise constitute part of a "plan" or "series of C:\WINDOWS\temp\Merger Agreement.doc (265888) related transactions" (within the continued validity and effectiveness meaning of any such Tax Incentive.
(xvSection 355(e) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising Code) in any Pre-Closing Tax Period (each, a “Tax Attribute”), or conjunction with the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingMerger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Autotradecenter Com Inc)
Tax Returns and Audits. (i) The Company has (a) prepared USWeb and each of its subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) Returns relating to any Taxes required to be filed by USWeb and all Taxes concerning or attributable each of its subsidiaries, except such Returns which are not material to the Company or its operationsUSWeb, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid or Except as is not material to USWeb, USWeb and each of its subsidiaries as of the Effective Time will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Except as is not material to USWeb, neither USWeb nor any of its subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed against USWeb or proposed against the Companyany of its subsidiaries, nor has the Company USWeb or any of its subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No Except as is not material to USWeb, no audit or other examination of any Tax Return of the Company USWeb or any of its subsidiaries is presently in progress, nor has the Company USWeb or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Except as is not material to USWeb, no adjustment relating to any Returns filed by USWeb or any of its subsidiaries has been proposed formally or informally by any Tax authority to USWeb or any of its subsidiaries or any representative thereof and, to the Balance Sheet Dateknowledge of USWeb, the Company does not have no basis exists for any Liabilities for unpaid Taxes such adjustment which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesswould be material to USWeb.
(vi) The Company Neither USWeb nor any of its subsidiaries has made available to Parent or its legal counsel, copies of all income and other material Tax Returns any liability for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to unpaid Taxes other than Liens for Taxes not yet due and payableTaxes being contested in good faith by appropriate proceedings which has not been accrued for or reserved on the USWeb Balance Sheet, whether asserted or unasserted, contingent or otherwise, which is material to USWeb.
(viii) The Company 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 USWeb or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162 of the Code.
(ix) Neither USWeb 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 USWeb.
(x) USWeb is 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.
(ixxi) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution No power of stock intended to qualify for tax‑free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction attorney that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service currently in force has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party granted with respect to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the matter relating to Taxes of any Person under Treasury Regulation § 1.1502-6 (payable by USWeb or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesits subsidiaries.
(xii) The Company will not be required Neither USWeb nor any of its subsidiaries is party to include or affected by any income tax-sharing or gain allocation agreement or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Datearrangement.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
USWeb Schedules list (xivy) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax-sharing arrangement that USWeb or any of its subsidiaries has in any jurisdiction, including the nature, amount and lengths of such Tax reduction agreement exemption, Tax holiday or other Tax-sharing arrangement and (z) any expatriate tax programs or policies affecting USWeb or any of its subsidiaries. Each of USWeb and its subsidiaries is in full compliance in all material respects with all terms and conditions required to maintain any Tax exemption, Tax holiday or other Tax-sharing arrangement or order (each, a “Tax Incentive”), of any Governmental Entity and the consummation of the transactions contemplated by this Agreement hereby will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) The Company is not subject to exemption, Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment holiday or other place of business in that countryTax-sharing arrangement or order.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (CKS Group Inc)
Tax Returns and Audits. (i) The Company and each Subsidiary has (a) accurately prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements statements, and reports (“Tax Returns”"RETURNS") relating to Taxes of the Company, any Subsidiary, or their operations and have paid all Taxes concerning or attributable shown to the Company or its operations, and be due on such Tax Returns. 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 it is required to paylaw.
(ii) The Company has and each Subsidiary as of the Effective Time (A) will have paid or accrued all Taxes it is required to pay or accrue and (B) will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amounts("FICA"), Taxes pursuant to the Federal Unemployment Tax Act amounts ("FUTA"), and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Neither the Company nor any Subsidiary has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed, or assessed or proposed against the CompanyCompany or any Subsidiary, nor has the Company or any Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any Subsidiary by any Tax authority is presently in progress, nor has the Company or any Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company or any Subsidiary has been proposed formally or informally by any Tax authority. The authority to the Company is not a party to or bound by any closing of its subsidiaries or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities Subsidiary has any liability for unpaid Taxes which have has not been accrued or reserved against in accordance with GAAP on the Current Company Balance Sheet, whether asserted or unasserted, contingent or otherwise other than any liability for unpaid Taxes that may have accrued since the date of the Company Balance Sheet in connection with the operation in the ordinary course of the business of the Company and the Subsidiaries. The accrual for Taxes of the Company and the Subsidiaries shown on the Company Balance Sheet is sufficient to discharge the Taxes for all periods (or the portion of any period) ending on or prior to the date of the Company Balance Sheet, and no Taxes will be incurred by the Company has not incurred or any Liability for Taxes since Subsidiary between that date and the Balance Sheet Date other than Closing Date, except in the ordinary course of business.
(vivii) The Company has made available to provided Parent or its legal counsel, copies of all federal, state, and foreign income and other material all state sales and use Tax Returns for of the Company or any Subsidiary for each of the prior three (3) taxable Company's last five fiscal years.
(viiviii) There are (and and, as of immediately following the Effective Time Closing, there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any kind ("LIENS") on the assets of the Company or any Subsidiary relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(viii) The Company has payable or Liens that would not been, at any time, a “United States Real Property Holding Corporation” within materially impair the meaning of Section 897(c)(2) use of the Codeencumbered assets.
(ix) The There is no contract, agreement, plan or arrangement to which the Company has is a party as of the date of this Agreement, including but not constituted either a “distributing corporation” limited to the provisions of this Agreement, covering any employee or a “controlled corporation” in a distribution former employee of stock intended the Company or any Subsidiary that, individually or collectively, could give rise to qualify for tax‑free treatment under Section 355 the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code.
(x) The Neither the Company nor any Subsidiary has not engaged in a reportable transaction filed any consent agreement under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 341(f) of the types Code or agreed to have Section 341(f)(2) of transactions that the Internal Revenue Service has determined Code apply to be any disposition of a Tax avoidance transaction and identified subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)the Company.
(xi) The Neither the Company has (A) never 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 the Company), (B) never been a nor any Subsidiary is party to or has any Tax obligation under any tax-sharing, indemnification tax indemnity or tax allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (agreement or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Except as may be required as a result of the Merger, the Company and the Subsidiary have not been and will not be required to include any income or gain or exclude any deduction or loss from Taxable adjustment in taxable income for any Tax tax period (or portion thereof after thereof) pursuant to Section 481 or Section 263A of the Closing Code or any comparable provision under state or foreign tax laws as a result of (A) any change in method of transactions, events or accounting under Section 481 of the Code for any Tax period or portion thereof ending on or methods employed prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateClosing.
(xiii) The None of the assets of the Company uses or any Subsidiary is tax exempt use property within the cash method meaning of accounting for income Tax purposesSection 168(h) of the Code.
(xiv) The Company is in full compliance Schedules list (A) any foreign tax holidays, (B) any intercompany transfer pricing agreements, or other arrangements that have been established by the Company or any Subsidiary with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”)authority, and the consummation of the transactions contemplated by this Agreement will not have (C) any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) The Company is not subject to Tax in any country other than its country of incorporation expatriate programs or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, policies affecting the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingSubsidiary.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Innovative Tech Systems Inc)
Tax Returns and Audits. (i) The Company has Except as set forth in Section 3.12 of the Parent Schedules:
(a) prepared Parent and each of its Subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) Returns relating to Taxes required to be filed by the Parent and each of its Subsidiaries with any Tax authority prior to the date hereof, except such Returns which are not material to the Parent. The Parent and each of its Subsidiaries have paid all Taxes concerning or attributable shown to the Company or its operations, and be due on such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and Returns.
(b) timely paid all Taxes it is required to pay.
(ii) The Company has paid or Parent and each of its Subsidiaries as of the Effective Time will have withheld with respect to its Employeesemployees all federal and state income Taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amountsAct, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any except such Taxes over which are not material to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateParent.
(iiic) The Company Neither the Parent nor any of its Subsidiaries has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyParent or any of its Subsidiaries, nor has the Company Parent or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(ivd) No audit or other examination of any Tax Return of the Company Parent or any of its Subsidiaries by any Tax authority is presently in progress, nor has the Company Parent or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(e) No adjustment relating to any Tax Return Returns filed by the Company Parent or any of its Subsidiaries has been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to the Parent or bound by any closing of its Subsidiaries or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vf) As Neither the Parent nor any of the Balance Sheet Date, the Company does not have its Subsidiaries has any Liabilities liability for any material unpaid Taxes which have has not been accrued for or reserved on the Current Balance SheetParent balance sheet included in the Parent's report on Form 10-Q filed on August 16, and 1999, whether asserted or unasserted, contingent or otherwise, which is material to the Company has not incurred any Liability for Taxes since the Balance Sheet Date Parent, other than any liability for unpaid Taxes that may have accrued since June 30, 1999 in connection with the operation of the business of the Parent and its Subsidiaries in the ordinary course of businesscourse.
(vig) The Company has made available There is no contract, agreement, plan or arrangement to which the Parent or any of its legal counselSubsidiaries is a party as of the date of this Agreement, copies including but not limited to the provisions of all income and other material Tax Returns this Agreement, covering any employee or former employee of the Parent or any of its Subsidiaries that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which the Parent or any of its Subsidiaries is a party or by which it is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Company for the prior three (3) taxable yearsCode.
(viih) There are (and immediately following Neither the Effective Time there will beParent nor any of its Subsidiaries has filed any consent agreement under Section 341(f) no Liens on the assets of the Company relating Code or attributable agreed to Taxes other than Liens for Taxes not yet due and payablehave 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 Parent or any of its Subsidiaries.
(viiii) The Neither the Parent nor any of its Subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement other than between the Company has not been, at any time, a “United States Real Property Holding Corporation” and its Subsidiaries.
(j) None of the Parent's or its Subsidiaries' assets is tax exempt use property within the meaning of Section 897(c)(2168(h) of the Code.
(ixk) The Company Neither the Parent nor any of its Subsidiaries 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.
(x) Code since April 16, 1997. The Company stock of neither the Parent nor any of its Subsidiaries has not engaged been distributed in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is satisfying the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated group (within the meaning requirements of Section 1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 355 of the Code for any Tax period or portion thereof ending on or prior to the Closing Datesince April 16, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date1997.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. returns, estimates, information statements foreign Tax Returns and reports (“Tax Returns”) relating to any and all Taxes estimates concerning or attributable to the Company itself or its operations, operations and such Tax Returns and estimates are true and correct in all material respects and have been completed in accordance with applicable law and Law.
(bii) The Company (A) has timely paid all Taxes it is required to pay.
(ii) The Company has paid or pay and withheld and properly remitted with respect to its Employees, stockholders employees (and other third parties, timely paid over to the appropriate Taxing authority) all U.S. federal, federal and state and non-U.S. income Taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes of any kind or nature required to be paid or withheld, and (B) has timely paid over any such accrued on the Current Balance Sheet all Taxes over attributable to the appropriate authorities, periods preceding the Current Balance Sheet and will pay or withhold (not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and pay over) such Taxes that are required ending immediately prior to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateEffective Time, other than in the Ordinary Course of Business.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency or adjustment outstanding, assessed or proposed against the Company, nor has and the Company has not executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or Parent, its legal counselcounsel and its accountants, copies of all income and other material Tax Returns for filed by the Company for the prior three (3) taxable yearsall periods since its inception.
(viivi) There are (and immediately following the Effective Time there will be) no Liens Encumbrances on the assets of the Company relating or attributable to Taxes other than Liens Encumbrances for Taxes not yet due and payable.
(vii) The Company has no 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.
(viii) The Company has not been, at any time, (a) never been a “United States Real Property Holding Corporation” member of an affiliated group (within the meaning of Code Section 897(c)(21504(a)) filing a consolidated federal income tax return (other than a group the common Parent of which was Company), (b) never been a party to any Tax sharing, indemnification or allocation Contract, or owe any amount under any such Contract, (c) no liability for the CodeTaxes of any Person 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 (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 has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax-free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the 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 Treasury Regulation Treas. Reg. Section 1.6011-4(b)(2).
(xi) The Company has (A) never been not disposed of any property in a member of an affiliated group (within transaction being accounted for under the meaning of installment method pursuant to Section 1504(a) 453 of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will (i) has not be agreed nor is required to include make any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under adjustment pursuant to Section 481 of the Code by reason of a change in accounting methods or otherwise, (ii) has no 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 Tax period or portion thereof ending on or prior change in accounting methods that relate to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) its business and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Dateoperations.
(xiii) The No power of attorney has been granted by the Company uses the cash method with respect to any matter relating to Taxes, which power of accounting for income Tax purposesattorney is currently in force.
(xiv) The Company is has no direct or indirect beneficial ownership interest in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, i) a “Tax Incentive”)passive foreign investment company,” (ii) a “foreign personal holding company,” (iii) a “foreign sales corporation,” (iv) a “foreign investment company,” or (v) a person other than a United States person, and each within the consummation meaning of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax IncentiveCode.
(xv) The Company is does not subject to Tax in any country other than its country own “corporate acquisition indebtedness” within the meaning of incorporation or formation by virtue Section 279 of having a permanent establishment or other place of business in that countrythe Code.
(xvi) Notwithstanding anything in this Agreement to the contrary, No property of the Company makes no representations or warranties regarding is “tax-exempt use property” within the amount, value or condition of, or any limitations on, any Tax asset or attribute meaning of Section 168 of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 3.10 of this Agreement:
(i) The Company has (a) Each of the Sellers as of the Effective Date will have prepared and timely filed or made a timely request for extension for all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company Acquired Assets or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has Each of the Sellers as of the Effective Date (A) will have paid or accrued all Taxes relating to the Acquired Assets it is required to pay or accrue in accordance with the generally accepted accounting practices as in effect in Germany from time to time and (B) will have withheld and timely remitted with respect to its Employees, stockholders and other third parties, employees all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts taxes and other Taxes relating to the Acquired Assets required to be paid or withheld, withheld and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateremitted.
(iii) The Company None of the Sellers has not been delinquent in the payment of any Tax, Tax relating to the Acquired Assets nor is there any Tax deficiency relating to the Acquired Assets outstanding, assessed or proposed against any of the CompanySellers, nor has the Company any Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax relating to the Acquired Assets.
(iv) No audit or other examination of any Tax Return of the Company any Seller is presently in progress, nor has the Company any Seller been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As None of the Balance Sheet Date, the Company does not have Sellers has any Liabilities liabilities for unpaid Taxes relating to the Acquired Assets which have not been accrued or reserved against in accordance with generally accepted accounting practices as in effect in Germany from time to time on the Current Most Recent Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesswhether asserted or unasserted, contingent or otherwise.
(vi) The Company has Sellers have made available to Parent Buyers or its their legal counsel, copies of all foreign, federal and state income and other material all state sales and use Tax Returns filed for the Company for the prior three (3) taxable yearsall years 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 of any sort on the assets of the Company Acquired Assets relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payablepayable nor will the transfer of the Acquired Assets trigger a secondary tax liability for any of the Buyers.
(viii) The Company has not beenThere is no basis for the assertion of any claim relating or attributable to Taxes which, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the CodeLien on any Acquired Asset.
(ix) 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 As of the CodeEffective 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 any Seller involved in the Business that, individually or collectively, could give rise to the payment of any amount that would not be deductible by such as an expense under applicable law.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one None of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been Sellers is a party to any Tax a tax sharing, indemnification or allocation agreement, agreement nor does the Company any Seller owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xiixi) The Company will not be required to include any Each Seller's tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending tax deductions is accurately reflected on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) such Seller's tax books and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Daterecords.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Except as set forth in Schedule 2.9(b) of the Company Disclosure Schedule, the Company has (a) prepared and timely filed all income and other material U.S. required federal, state, state and local and non-U.S. returns, estimates, information statements and reports (“Tax 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, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has paid all Taxes required to be paid and has withheld or withheld paid with respect to its Employees, stockholders Employees and other third parties, parties (and timely paid over any withheld amounts to the appropriate Taxing authority) all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes required to be paid withheld or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepaid.
(iii) The Except as set forth on Schedule 2.9(b) of the Company Disclosure Schedule, the Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or 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 extending extension of the period for the assessment or collection of any TaxTax with continuing effect.
(iv) 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return filed by the Company has been proposed formally or, to the Knowledge of the Company, informally by any Tax authority. The tax authority to the Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the The Company does not have any Liabilities had no liabilities for unpaid Taxes as of the date of the Comprehensive Financial Summary which have not been accrued or reserved on the Current Balance SheetComprehensive Financial Summary, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesswhether asserted or unasserted, contingent or otherwise.
(vivii) The Company has made available to Parent or its legal counsel, counsel copies of all income and other material Tax Returns for the Company filed for the prior three (3) taxable yearsall periods since its inception.
(viiviii) There are (and immediately following the Effective Time there will be) no Liens 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.
(viiiix) The No Company has not been, at any time, Stockholder holds shares of Company Common Stock that are non-transferable and subject to a “United States Real Property Holding Corporation” substantial risk of forfeiture within the meaning of Section 897(c)(283 of the Code with respect to which a valid election under Section 83(b) of the Code.
(ix) The Company Code has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution been made, and no payment to any Company Stockholder of stock intended to qualify for tax‑free treatment under Section 355 any portion of the Code.
(x) The Company has not engaged consideration payable pursuant to this Agreement will result in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, compensation or other form of published guidance as a listed transactionincome to such Company Stockholder with respect to which Parent, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision subsidiary of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not Parent would be required to include deduct or withhold any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Datetaxes.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a1) prepared and timely filed all income and other material U.S. federal, and all material state, local and non-U.S. returns, estimates, information statements and reports reports, including amendments thereto (“Tax Returns”) required to be filed or filed timely extensions relating thereto relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law law, and (b2) timely paid all Taxes it is required to paypay (whether or not shown to be due on any Return) other than those for which the Company has established and maintained adequate reserves on its balance sheet as set forth and described on Disclosure Schedule 2.10(b)(i).
(ii) The Company has paid or withheld with respect to its Employees, stockholders Employees (as defined in Section 2.22(a) hereof) and other third parties, all non de-minimis U.S. federal, state state, local, and non-U.S. income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such withheld Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no material Tax deficiency outstanding, assessed or or, to the Company’s Knowledge, proposed against the Company, nor has and the Company has not executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax.
(iv) No audit or other examination of any 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, and . No material adjustment relating to any Return filed by the Company does not have Knowledge that for any such action tax year ending on or proceeding is being contemplatedafter December 31, 2003 has been proposed by any Tax authority to the Company or any representative thereof. No claim has ever been made in writing by any Tax an authority that in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities had no liabilities for unpaid Taxes which that have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business. 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 5 of FASB 109.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company filed for the prior three past six (36) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes Taxes, other than Liens for Taxes not yet due and payable.
(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 (1) never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income tax Return (other than a group the common parent of which is the Company), (2) never been a party to any Tax sharing, indemnification, allocation or similar agreement, (3) no Liability for the Taxes of any person (other than the Company and the Company Subsidiaries) under Treasury Regulation § 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 or agreement, or otherwise, and (4) never been a party to any joint venture, partnership or other arrangement that, to the Company’s Knowledge, could be treated as a partnership for Tax purposes.
(x) The Company has not been, at any time, been a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(ixxi) The Company has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax-free treatment under Section 355 of the Code.
(xxii) The Company has not engaged in a reportable transaction under Treasury Regulation Section Treas. Reg. § 1.6011-4(b), 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 tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section Treas. Reg. § 1.6011-4(b)(2).
(xixiii) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a) Company’s federal tax returns delivered to Parent pursuant hereto set forth as of the Codedate of such return: (1) filing a consolidated federal income Tax Return (other than a group the common parent basis of which was the Company)Company in its assets grouped by category of asset, (B2) never been a party 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 any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes arising out of any Person under Treasury Regulation deferred intercompany transaction as defined in Treas. Reg. § 1.1502-6 (13 or any similar provision of state, local or non-U.S. applicable law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xiixiv) The Company will not be required to include any material income or gain or exclude any material deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A1) any change in method of accounting under Section 481 481(c) of the Code for any Tax period or portion thereof ending on or prior to the Closing DateCode, (B2) closing agreement under Section 7121 of the Code executed on or prior to the Closing DateCode, (C3) deferred inter-company intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of clauses (A1), (B2) and (C3) of this Section 2.10(b)(xiv), under any similar provision of applicable law), (D4) installment sale or open transaction disposition consummated on or prior to the Closing Datedisposition, or (E5) prepaid amount received on or prior to by the Closing DateCompany.
(xiiixv) The Company uses the cash accrual method of accounting for income Tax tax purposes.
(xivxvi) The Company is not subject to Tax in any foreign jurisdiction 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.
(xvii) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), ) and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xvxviii) The Company is not subject to Tax in prices for any country other than its country property or services (or for the use of incorporation any property) provided by or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (subsidiaries are arm’s length prices for purposes of the relevant transfer pricing laws, including Treasury Regulations promulgated under Section 482 of the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Tax Returns and Audits. (i) The Company Peak and each of its Subsidiaries has (a) prepared timely filed, taking into account properly obtained extensions of time to file, all material Bermuda, People’s Republic of China, Hong Kong and timely filed all income and other material U.S. United States federal, state, local and non-U.S. other foreign returns, estimates, declarations, information statements and reports (“Tax Returns”) relating to Taxes required to be filed by Peak and each of its Subsidiaries with any and all Taxes concerning or attributable to the Company or its operationsTax authority, and such Tax Returns are true and correct in all material respects and have been completed in material accordance with applicable law law. Peak and (b) timely each of its Subsidiaries have paid all material Taxes required to be paid, whether or not shown to be due on such Returns.
(ii) Peak and each of its Subsidiaries (A) has paid or accrued all material Taxes it is required to pay.
pay or accrue and (iiB) The Company has paid or withheld with respect to its Employeespast or present employees, stockholders officers, directors and independent contractors, suppliers, creditors, shareholders or other third parties all material Taxes and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes deductions required to be withheld and has, within the time and in the manner required by law, paid or withheld, and has timely paid over any such Taxes over withheld amounts to the appropriate proper governmental authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither Peak nor any of its Subsidiaries has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Peak or proposed against the Companyits Subsidiaries, nor has the Company Peak or any of its Subsidiaries executed any waiver of any statute of limitations on or extending extensions of the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Peak or any of its Subsidiaries is presently currently in progress, nor has the Company Peak or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that nor is any such action taxing authority asserting, or proceeding is being contemplated. No to Peak’s knowledge, threatening to assert, against Peak or any of its Subsidiaries any claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to for material Taxes. There are no matters relating to material Taxes under discussion between any taxing authority and the CompanyPeak or any of its Subsidiaries.
(v) As No material adjustment relating to any Returns filed by Peak or any of the Balance Sheet Date, the Company its Subsidiaries (and no claim by a taxing authority in a jurisdiction in which Peak or its Subsidiaries does not have file Returns that Peak or any Liabilities for unpaid Taxes which have not of its Subsidiaries may be subject to taxation by such jurisdiction) has been accrued proposed, formally or, to Peak’s knowledge, informally, by any Tax authority to Peak or reserved on the Current Balance Sheetany of its Subsidiaries or, and the Company has not incurred to Peak’s knowledge, any Liability for Taxes since the Balance Sheet Date accountant, attorney or other than in the ordinary course advisor or representative of businessPeak or its Subsidiaries.
(vi) The Company Neither Peak nor any of its Subsidiaries has made available any liability for unpaid Taxes in excess of US$50,000 (or the equivalent in other currencies) (whether or not shown to Parent be due on any Return) which has not been accrued for or reserved on the most recent Peak balance sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, other than any liability for unpaid Taxes that may have accrued since the date of Peak’s most recent balance sheet in connection with the operation of the business of Peak and its legal counsel, copies of all income and other material Tax Returns for Subsidiaries in the Company for ordinary course or any Taxes arising from the prior three (3) taxable yearsAmalgamation.
(vii) There is no Contract covering any employee or former employee of Peak or any of its Subsidiaries that, individually or in the aggregate, could give rise to the payment of any amount that would not be deductible as an expense pursuant to Section 162(m) of the Code, nor has Peak or any of its Subsidiaries made any payment of any amount that would not be deductible as an expense pursuant to Section 404 of the Code, as and if applicable.
(viii) Neither Peak nor any of its Subsidiaries: (A) has ever been a member of a Consolidated Group; (B) has ever been a party to any Tax sharing or Tax allocation agreement, arrangement or understanding nor owes any amount under any such agreement; (C) is liable for the Taxes of any other person as a result of being or ceasing to be a member of a Consolidated Group, as a transferee or successor, by contract, by operation of law or otherwise; and (D) is currently a party to any joint venture, partnership or other arrangement that could be treated as a partnership for income Tax purposes.
(ix) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company Peak or any of its Subsidiaries relating to or attributable to Taxes other than except for Liens for Taxes not yet due and payable.
(viiix) The Company Neither Peak nor any of its Subsidiaries has not been, at requested or received a ruling from any time, taxing authority or signed a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Codeclosing or other agreement with any taxing authority which would reasonably be expected to have an adverse effect on Peak.
(ixxi) The Company Neither Peak 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‑free tax-free treatment under Section 355 of the Code or any similar provision of applicable law: (A) in the two years prior to the date of this Agreement ;or (B) 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 Amalgamation.
(xxii) The Company Peak 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, to the knowledge of Peak, subject to receipt of the Approvals required herein, the consummation of the Amalgamation 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.
(xiii) Neither Peak nor any of its Subsidiaries has not engaged in a reportable transaction under Treasury Regulation Section Treas. Reg. § 1.6011-4(b)) or any other applicable tax law, including a 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 Treasury Regulation Section Treas. Reg. § 1.6011-4(b)(2).
(xixiv) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company Peak will not be required to include any income or gain or exclude any deduction or loss from Taxable income that would result in a material liability for any Tax period or portion thereof after the Closing Taxes as a result of any (Aa) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Dateaccounting, (Bb) closing agreement under Section 7121 of the Code executed on or prior to the Closing Datefor Taxes, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any similar provision of applicable law), (Dc) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (Ed) prepaid amount received on or prior to the Closing Dateamount.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has Except as set forth in Section 2.11(b)(i) of the Disclosure Schedules, Mariposa Australia and each of its Subsidiaries have (a) prepared and timely filed all income and other material required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports reports, including attachments and amendments thereto (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Mariposa Australia or any of its operations, Subsidiaries or their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is they are required to pay.
(ii) The Company has Mariposa Australia and each of its Subsidiaries have paid or withheld with respect to its Employees, stockholders their respective Employees and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and all other Taxes required to be paid withheld or withheldpaid, and has have timely paid over any such Taxes withheld over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither Mariposa Australia nor any of its Subsidiaries is delinquent in the payment of any Tax, or has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the CompanyMariposa Australia or any of its Subsidiaries, nor has the Company Mariposa Australia or any of its Subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Mariposa Australia or any of its Subsidiaries is presently in progress, nor has the Company Mariposa Australia or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that . No adjustment relating to any such action Return filed by Mariposa Australia or proceeding is being contemplatedany of its Subsidiaries has been proposed by any Tax authority to Mariposa Australia or any of its Subsidiaries or any representative thereof. No claim has ever been made by an authority in writing by a jurisdiction where Mariposa Australia or any Tax authority of its Subsidiaries does not file Returns that the Company Mariposa Australia or any of its Subsidiaries is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As Neither Mariposa Australia nor any of the Balance Sheet Date, the Company does not have its Subsidiaries has any Liabilities liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance SheetFinancials, whether asserted or unasserted, contingent or otherwise, and the Company neither Mariposa Australia nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the Balance Sheet Date March 31, 2015 other than in the ordinary course of business. Mariposa Australia and each of its Subsidiaries have identified all uncertain tax positions contained in all Returns filed by Mariposa Australia or its Subsidiaries and, except as set forth in Section 2.11(b)(v) of the Disclosure Schedule, have established adequate reserves and made any appropriate disclosures in the Financials in accordance with the requirements of Financial Interpretation No. 48 of FASB Statement No. 109.
(vi) The Company Mariposa Australia has made available to Parent Mariposa US or its legal counsel, copies of all income and other material Tax Returns for the Company Mariposa Australia and its Subsidiaries filed for the prior three (3) taxable yearsall periods since inception.
(vii) There are (and immediately following the Effective Time Closing Date there will be) no Liens on the assets of the Company Mariposa Australia or any of its Subsidiaries 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 Mariposa Australia or any of its Subsidiaries.
(viii) The Company Neither Mariposa Australia nor any of its Subsidiaries has not (a) ever been a Stockholder of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common corporation of which was Mariposa Australia), (b) ever been a party to any Tax sharing, indemnification or allocation agreement, nor does Mariposa Australia or any of its Subsidiaries owe any amount under any such agreement, (c) any liability for the Taxes of any Person, under Treasury Regulation §1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group or consortium relief or similar arrangements), as a transferee or successor, by contract or agreement, by operation of law or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(ix) Section 2.11(b)(ix) of the Disclosure Schedule sets forth the following information with respect to Mariposa Australia and each of its Subsidiaries: (1) the basis of Mariposa Australia and each of its Subsidiaries in its assets; (2) the amount of any net operating loss, net capital loss, unused investment, foreign, or other Tax credit and the amount of any limitation upon any of the foregoing; and (3) the amount of any deferred gain or loss allocable to Mariposa Australia and each of its Subsidiaries arising out of any deferred intercompany transaction as defined in Treas. Reg. § 1.1502-13 or any similar provision of applicable law.
(x) Neither Mariposa Australia nor any of its Subsidiaries has 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.
(ixxi) The Company Neither Mariposa Australia 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‑free tax-free treatment under Section 355 of the Code.
(xxii) The Company Neither Mariposa Australia nor any of its Subsidiaries has not engaged in a “reportable transaction under Treasury Regulation Section transaction” as set forth in Treas. Reg. §1.6011-4(b), including a any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction, ,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xixiii) The Company has (A) never been a member Neither Mariposa Australia nor any of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income its Subsidiaries is subject to Tax Return (in any country other than its country of incorporation or formation by virtue of having a group the common parent of which was the Company)permanent establishment, (B) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course place of business the primary purpose or source of which is not related to Taxes), or otherwise, and (D) never been a party to any joint venture, partnership or other agreement income in that could be treated as a partnership for Tax purposesjurisdiction.
(xiixiv) The Company Neither Mariposa Australia nor any of its Subsidiaries will not be required to include any income or gain or exclude any deduction or loss from Taxable taxable income for any Tax period or portion thereof after the Closing as a result of any (Aa) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing DateClosing, (Bb) closing agreement under Section 7121 of the Code executed on or entered into prior to the Closing DateClosing, (Cc) deferred inter-company intercompany gain or excess loss account as of the Closing under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of items (Aa), (B) and b), or (Cc), under any similar provision of applicable law), (Dd) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (Ee) receipt of a prepaid amount received on or prior to the Closing DateClosing.
(xiiixv) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is Mariposa Australia and its Subsidiaries are in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), ) and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xvxvi) The To the extent required, Mariposa Australia and each of its Subsidiaries has properly reported and/or withheld and remitted on amounts deferred under any Company is not nonqualified deferred compensation plan 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.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute Section 409A of the CompanyCode, including but not limited in good faith and pursuant to net operating losses IRS Notices 2005-1, 2006-100 and research 2007-89 for the years 2009 and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing2010.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) To the extent relevant to the Acquired Assets, as of the Closing Date, Seller will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company Seller or its operations, operations and such Tax Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law and law.
(bii) timely To the extent failure to do so would adversely impact Buyer, the Acquired Assets or Buyer's use of the Acquired Assets, as of the Closing Date, Seller (A) will have paid all Taxes it is required to pay.
pay and (iiB) The Company has paid or will have withheld with respect to its Employees, stockholders and other third parties, employees all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company To the extent failure to do so would adversely impact Buyer, the Acquired Assets or Buyer's use of the Acquired Assets, Seller has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the CompanySeller, nor has the Company Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No To the extent relevant to the Acquired Assets, no audit or other examination of any Tax Return of the Company Seller is presently in progress, nor has the Company Seller been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company Seller does not have and knows of no basis for the assertion of any Liabilities claim for any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date (other than in sales or transfer taxes related to the ordinary course Asset Sale) for which Buyer would become liable as a result of businessthe transactions contemplated by this Agreement.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time Closing there will be) no Liens on the assets Acquired Assets relating to or attributable to Taxes (other than sales or transfer taxes related to the Asset Sale).
(vii) Seller knows of no basis for the Company assertion of any claim relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beenwhich, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect Lien on the continued validity and effectiveness of any such Tax IncentiveAcquired Assets.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) and each of its Subsidiaries have prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) that are or were required to be filed by them pursuant to applicable Legal Requirements relating to any and all Taxes concerning or attributable to the Company Company, its Subsidiaries or its operationstheir respective operations and have timely and fully paid, or made provision for the payment of, all Taxes due and payable by them, regardless of whether or not shown on such Tax Returns, and such Tax Returns are true and correct in all material respects and have been completed in accordance with all applicable law Legal Requirements and (b) timely paid all Taxes it is required to payare true, correct, and complete.
(ii) The Company has and each of its Subsidiaries have paid or withheld with respect to its Employees, stockholders their Employees (and other third parties, paid over to the appropriate taxing authority) all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has Neither the Company nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations on or extending outstanding extension of the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its Subsidiaries is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liabilities for unpaid Taxes which have not been fully accrued or reserved on the Current Company Balance SheetSheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the date of the Company Balance Sheet Date to the date of this Agreement other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on any of 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 payablePermitted Liens.
(viiivii) The Neither the Company has not been, at nor any time, of its Subsidiaries is a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(viii) Neither the Company nor any of its Subsidiaries (a) 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 group the common parent of which was Company), (b) owes any amount under any Tax sharing, indemnification or allocation agreement, or (c) has any liability for the Taxes of any Person (other than Company or any of its Subsidiaries) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or non-U.S. law), as a transferee or successor, by Contract, or otherwise.
(ix) 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‑free tax-free treatment under Section 355 of the Code.
(x) The Set forth in Section 2.7(b)(x) of the Company has not engaged in Disclosure Letter is a reportable transaction under Treasury Regulation Section 1.6011-4(blist of (A) all Tax Returns filed by the Company and its Subsidiaries during the three (3) year period immediately preceding the date of this Agreement, (B) all Tax Returns required to be filed by the Company and its Subsidiaries for any Tax period ending on or before the Closing Date that are required to be filed after the Closing Date (taking into account any valid and effective extensions of due dates), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined and (C) all Tax Returns required to be a filed by the Company and its Subsidiaries for any Tax avoidance transaction period ending after, but which includes, the Closing Date, that are required to be filed after the Closing Date (taking into account any valid and identified effective extensions of due dates), in each case setting forth the applicable jurisdiction in which such Tax Returns are required to be filed by noticethe Company or any of its Subsidiaries, regulation, the applicable due date or other form the extended due date requested or obtained (if applicable) and the amount of published guidance as a listed transaction, as set forth Tax (if any) paid in Treasury Regulation Section 1.6011-4(b)(2)connection with any request for or extension of any due date.
(xi) The Neither the Company nor any of its Subsidiaries has (A) never been engaged in any transaction that, at the time undertaken, was a member of an affiliated group “reportable transaction” (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 the CompanyTreas. Reg. § 1.6011-4), (B) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
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 been a member), (aA) prepared has properly completed and timely filed all income and other material U.S. foreign, federal, state, local and non-U.S. returns, estimates, municipal tax and information statements and reports returns (the “Tax Returns”) relating required to any and all Taxes concerning be filed by it or attributable to the Company or on its operations, behalf and such Tax Returns are true true, correct and correct complete in all material respects and have been completed in accordance with applicable law and respects, (bB) has timely paid all Taxes it is required to paybe paid by it for which payment was due, and (C) has established an adequate 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 Company Balance Sheet). The Company has provided or made available to Magma true and correct copies of such Returns.
(ii) The Company has paid is not delinquent in the payment of any Tax or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldin the filing of any Returns, and has timely paid over no deficiencies for any such Taxes over to Tax have been threatened, claimed, proposed or assessed against the appropriate authoritiesCompany or any of its officers, and will pay employees or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateagents in their capacity as such.
(iii) The Company has not been delinquent in received any notification from the payment of Internal Revenue Service or any Tax, nor is there other taxing authority regarding any Tax deficiency outstanding, assessed material issues that (A) are currently pending before the U.S. Internal Revenue Service (the “IRS”) or proposed against any other taxing agency or authority (including any sales or use taxing authority) regarding the Company, nor has or (B) have been raised by the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit IRS or other examination of any Tax taxing agency or authority and not yet finally resolved. No Return of the Company is presently in progress, nor has under audit by the IRS or any other taxing agency or authority and any such past audits (if any) have been completed and fully resolved to the satisfaction of the applicable taxing agency or authority conducting such audit and all Taxes determined by such audit to be due from the Company have been notified paid in writing of any request for such an audit full to the applicable taxing agencies or other examination, authorities or adequate reserves therefore have been established and are reflected in the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred . Table of Contents (iv) No Tax liens are currently in effect against any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating 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 not been, at of any time, a “United States Real Property Holding Corporation” within the meaning statute of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party limitations with respect to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company Each of Holdings and its Subsidiaries, (A) has (a) prepared properly completed and timely filed all income Tax Returns and all other material U.S. federalReturns required to be filed by it or on its behalf, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”B) relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) has timely paid all Taxes it is required to paybe paid by it for which payment was due, (C) as required by GAAP has established an adequate accrual or reserve for the payment of all material Taxes payable in respect of the periods or portions thereof prior to the date of the Latest Balance Sheet (which accrual or reserve as of the date of the Latest Balance Sheet is fully reflected on the Latest Balance Sheet), and (D) has made (or will make on a timely basis) all material estimated Tax payments required to be made. All such Returns are true, correct and complete in all material respects.
(ii) The Company has paid or withheld with respect to To the Knowledge of Sellers, neither Holdings nor any of its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been Subsidiaries is delinquent in the payment of any TaxTax or in the filing of any Returns, nor is there and no deficiencies for any Tax deficiency outstandinghave been threatened, claimed, proposed or assessed against Holdings, any of its Subsidiaries or proposed against any of its officers, employees or agents in their capacity as such.
(iii) Neither Holdings nor any of its Subsidiaries has received any written notification from the CompanyInternal Revenue Service (the "IRS") or any other taxing authority regarding any material issues that (A) are currently pending before the IRS or any other taxing authority (including any sales or use taxes) regarding Holdings or any of its Subsidiaries, nor has or (B) have been raised by the Company executed IRS or other taxing authority and not yet finally resolved. No material Return of Holdings or any waiver of its Subsidiaries is under audit by the IRS or any statute other taxing authority and any such past audits (if any) have been completed and fully resolved to the satisfaction of limitations on the applicable taxing authority conducting such audit and all Taxes determined by such audit to be due from Holdings or extending its Subsidiaries have been paid in full to the period for applicable taxing authorities or adequate reserves therefore have been established and are reflected in the assessment or collection of any TaxLatest Balance Sheet.
(iv) No audit or other examination Tax liens are currently in effect against any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating Holdings or attributable to Taxes any of its Subsidiaries other than Liens liens that arise by operation of law for Taxes not yet due and payable. There is not in effect any waiver by Holdings or any of its Subsidiaries of any statute of limitations with respect to any Taxes nor has Holdings or any of its Subsidiaries agreed to any extension of time for filing any Return that has not been filed. Neither Holdings nor any of its Subsidiaries has consented to extend the period in which any Tax may be assessed or collected by any taxing authority.
(viiiv) The Company Other than adjustments caused by events occurring or elections made after the Closing, neither Holdings 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.
(ix) The Company has not constituted either a “distributing corporation” been or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable material adjustment in taxable income for any Tax period (or portion thereof thereof) ending after the Closing Date pursuant to Sections 481 or 263A of the Code or any comparable provision under state or foreign Tax laws as a result of (A) any change in method of transactions, events or accounting under Section 481 of the Code for any Tax period or portion thereof ending on or methods employed prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Surewest Communications)
Tax Returns and Audits. (i) The Company Except as set forth in Schedule 2.8, Omaha has (a) accurately prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any and all Taxes concerning relating or attributable to the Company Omaha, its assets, or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law law. For the purposes of this Agreement, a "TAX" or, collectively, "TAXES" means any and (b) timely all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts and any obligations under any agreements or arrangements with any other person with respect to such amounts. Except as set forth in Schedule 2.8, Omaha has paid all Taxes required to be paid with respect to such Returns and has withheld with respect to its employees all federal and state income taxes, FICA, FUTA and other Taxes it is required to pay.
withhold. The accruals for Taxes on the books and records of Omaha are sufficient to discharge the Taxes for all periods (iior the portion of any period) The Company has paid ending on or withheld with respect prior to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has . Omaha is not been delinquent in the payment of any TaxTax nor, nor except as set forth in Schedule 2.8, is there any Tax deficiency outstanding, proposed or assessed or proposed against the Company, Omaha nor has the Company Omaha executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No . Except as set forth in Schedule 2.8, the audits of each Return that has been audited by the relevant authorities or for which the statute of limitations has been waived or extended with respect to each Return has been closed and Omaha has not received any written or oral notification that an audit or other examination of any Tax Return of the Company Omaha is presently in progress, nor has . All such returns that have been audited or for which the Company been notified in writing statute of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company limitations has been proposed by any Tax authoritywaived are listed on Schedule 2.8. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet DateExcept as set forth in Schedule 2.8, the Company Omaha does not have any Liabilities liabilities for unpaid Taxes which federal, state, local and foreign Taxes, whether asserted or unasserted, known or unknown, contingent or otherwise and Omaha does not have not been accrued or reserved on any knowledge of any basis for the Current Balance Sheet, and the Company has not incurred assertion of any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available such liability attributable to Parent Omaha or its legal counsel, copies assets or operations. None of all income Omaha and other material Tax Returns for the Company for the prior three its subsidiaries (3i) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return tax return (other than a group the common parent of which was the Company), Omaha) or (Bii) never been a party to has any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability liability for the Taxes of any Person person (other than any of Omaha and its subsidiaries) under Treasury Regulation § Section 1.1502-6 of the Income Tax Regulations (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which or otherwise. Omaha is not related to Taxes), or otherwise, and (D) never been a party to or bound by any joint venturetax indemnity, partnership tax sharing or other agreement that could be treated tax allocation agreement. There are (and as a partnership for Tax purposes.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after of immediately following the Closing as a result there will be) no liens on the assets of (A) Omaha relating to or attributable to Taxes, except for liens for Taxes not yet due and payable and neither Omaha nor any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions Shareholders has knowledge of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and basis for the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness assertion of any such Tax Incentive.
(xvclaim which, if adversely determined, would result in liens on the assets of Omaha. Omaha has not filed any consents under Section 341(f) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the CompanyCode. None of the assets of Omaha are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code. There is no contract, agreement, plan or arrangement, including but not limited to net operating losses and research and development creditsthe provisions of this Agreement, arising covering any employee or former employee of Omaha 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. Omaha has not distributed to its shareholders, in any Pre-Closing Tax Period (eachconnection with or in contemplation of the Merger, a “Tax Attribute”), or the ability of Parent or any an amount of its affiliates assets, including cash, with a fair market value greater than 10% of the fair market value of the net assets or 30% of the fair market value of the gross assets (including within the Surviving Corporationmeaning of IRS Revenue Procedure 86-42) held by Omaha immediately prior to utilize any such Tax Attributes after the Closingdistribution.
Appears in 1 contract
Samples: Merger Agreement (Bristol Hotel Co)
Tax Returns and Audits. (i) The Company has (a) Parent as of the Closing Date will have prepared and timely filed or made a timely request for extension for all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax collectively the "Returns”") relating to any and all Taxes concerning or attributable to the Company Parent or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law.
(bii) timely The Parent as of the Closing Date: (A) will have paid or accrued all Taxes it is required to pay.
pay or accrue and (iiB) The Company has paid or will have withheld and timely remitted with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, withheld and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateremitted.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between liens, pledges, charges, claims, security interests or other encumbrances of any taxing authority and the Company.
sort (v"Liens") As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company Parent relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(viiiiv) The Company has not beenParent's tax basis in its assets for purposes of determining its future amortization, at any time, a “United States Real Property Holding Corporation” within depreciation and other federal income tax deductions is properly reflected on the meaning of Section 897(c)(2) of the CodeParent's tax books and records.
(ixv) The Company Parent has established (and until the Effective Time will establish) on its respective books and records reserves (to be specifically designated as an increase to current liabilities) that are adequate for the payment of all taxes 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 Codeyet due and payable.
(xvi) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)No federal, including a transaction that is the same state, local 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, foreign audits or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)administrative proceedings or court proceedings are presently pending with regard to any Taxes or Returns.
(xivii) The Company has (A) never 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 the Company), (B) never been Parent is not a party to any Tax sharing, indemnification tax-sharing or allocation agreement, nor does the Company Parent owe any amount under any such tax-sharing or allocation agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Sagent Technology Inc)
Tax Returns and Audits. Except as may be disclosed by DA in Section 3.15 of the DA Disclosure Letter or in DA SEC Documents:
(i) The Company To the Knowledge of DA, each member of the DA Group has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“foreign Tax Returns”) Returns relating to any and Taxes required to be filed by such member of the DA Group, in all Taxes concerning the jurisdictions in which it is or attributable was required to the Company or its operations, and such file. Such Tax Returns are true and correct in all material respects and respects, have been completed in all material respects in accordance with applicable law Law, and (b) timely paid all Taxes it is required shown to paybe due on such Tax Returns have been paid.
(ii) The Company DA has paid delivered or withheld made available to ComSovereign correct and complete copies of all Tax Returns (including extensions thereof), examination reports, statements of deficiencies assessed against or agreed to by any member of the DA Group, and other material correspondence with Taxing authorities filed or received with respect to its Employeesperiods beginning on or after January 1, stockholders 2016. There are no liens for Taxes (other than Taxes not yet due and other third parties, all U.S. federal, state payable or the amount or validity of which is being contested in good faith) upon any assets of any member of the DA Group or their respective stock or membership interests. All Taxes not yet due and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldpayable have been properly accrued on the books of the DA, and has timely paid over any such adequate reserves have been established therefor; the charges, accruals and reserves for Taxes over provided for on the financial statements delivered to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that ComSovereign are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateadequate in all material respects.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, proposed in writing or assessed or proposed against any member of the CompanyDA Group, nor has any member of the Company DA Group executed any unexpired waiver or extension of any statute of limitations on or extending the period for the assessment assessment, reassessment or collection of any Tax, and no power of attorney granted by any member of the DA Group with respect to any Taxes is currently in force.
(iv) No audit Tax audits or other examination administrative proceedings or court proceedings are presently pending or in progress with regard to any Taxes or Tax Returns of any Tax Return member 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the CompanyDA Group.
(v) As No member of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company DA Group has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated any consolidated, combined or unitary group (within the meaning of Section 1504(a) with any entity other than one or more other members of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company)DA Group for federal, (B) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation foreign Tax purposes. No member of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), or otherwise, and (D) never DA Group has been a party to any joint venture, partnership or other agreement arrangement that could be treated as a partnership for federal income Tax purposes.
(xiivi) The Company will not be Each member of the DA Group has (i) withheld all amounts required to include be withheld from its employees, agents, contractors and nonresident stockholders and remitted such amounts to the proper agencies; (ii) paid all required employer contributions and premiums and (iii) filed all Tax Returns with respect to employee income tax withholdings, Social Security and unemployment taxes and premiums, and other payroll Taxes, all in compliance with the withholding Tax provisions of applicable Tax laws.
(vii) No member of the DA Group has entered into any income or gain or exclude closing agreement which affects any deduction or loss from Taxable income Taxes of any member of the DA Group for any Tax period or portion thereof taxable year ending after the Closing as Date. No member of the DA Group is a result party to any Tax sharing agreement or similar arrangement for the sharing of Tax liabilities or benefits (Aother than customary Tax indemnifications in credit or other commercial agreements the primary purpose of which agreements does not relate to Taxes).
(viii) No member of the DA Group has agreed to and is not required to, make any adjustment by reason of a change in accounting method of accounting under Section 481 of the Code for that affects any Tax period or portion thereof taxable year ending on or prior to after the Closing Date, (B) closing agreement under Section 7121 . No Taxing authority has proposed to any member of the Code executed on DA Group any such adjustment or prior to change in accounting methods that affects any taxable year ending after the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 . No member of the Code DA Group has any application pending with any Taxing authority requesting permission for any changes in connection with a transaction consummated on accounting methods that relate to its business or prior to the Closing Date (or in the case of each of (A), (B) operations and (C), under that affects any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to taxable year ending after the Closing Date.
(xiiiix) The Company uses No asset of any member of the cash method DA Group is “tax exempt use property” under Code Section 168(h). No portion of accounting for income Tax purposesthe cost of any asset of any member of the DA Group has been financed directly or indirectly from the proceeds of any tax exempt state or local government obligation described in Code Section 103(a).
(xivx) The Company is in full compliance with all terms and conditions None of the assets of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation member of the transactions contemplated DA Group is property that any member of the DA Group is required to treat as being owned by this Agreement will not have any adverse effect on other person pursuant to the continued validity and effectiveness safe harbor lease provision of any such Tax Incentiveformer Code Section 168(f)(8).
(xvxi) The Company is No written claim has been made that any member of the DA Group has not subject to properly paid Taxes or filed Tax Returns in a jurisdiction in which any country other than its country member of incorporation or formation by virtue of having the DA Group does not file a permanent establishment or other place of business in that countryTax Return.
(xvixii) Notwithstanding anything in this Agreement to In the contrarypast five (5) years, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute member of the Company, including but not limited DA Group has been a party to net operating losses and research and development credits, arising a transaction that has been reported as a reorganization within the meaning of Code section 368 or distributed a corporation (or been distributed) in a transaction that is reported to qualify under Code section 355 or section 356.
(xiii) No member of the DA Group has engaged in any Pre-Closing Tax Period (each, transaction which is a “listed transaction” within the meaning of Income Tax Attribute”Regulation Section 1.6011-4(b)(2), or otherwise a “reportable transaction” for purposes of Code Section 6011, that could affect the ability income Tax liability for any taxable year not closed by the statute of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closinglimitations.
Appears in 1 contract
Tax Returns and Audits. (i) The Company and each of its Subsidiaries has (a) prepared and timely filed all income and other material U.S. federal, Israeli and material (which, for the avoidance of doubt, shall include all Returns relating to income, franchise and other similar Taxes) state, local provincial, local, and other non-U.S. returns, estimates, information statements statements, elections, forms, and reports reports, including attachments thereto and amendments thereof that it was required to file (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Company, its Subsidiaries or its operations, their respective operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law Law and (b) timely paid all Taxes it is required to paybe paid, whether or not shown to be due on such Returns, and no such Return was prepared in a manner that could subject the Company (or any of its Subsidiaries) to any accuracy-related penalty under Section 6662 of the Code (or any similar provision of Law).
(ii) The Company has paid or and each of its Subsidiaries have timely reported, withheld and remitted to the appropriate taxing authority, as applicable, with respect to its Employeesemployees, stockholders creditors, stockholders, contractors, suppliers and other third parties, all U.S. federal, state state, provincial, local, Israeli and other non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsTaxes, Federal Unemployment Tax Act amounts Taxes and other Taxes required to be paid or withheld, reported and/or withheld and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateremitted.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax, which waiver or extension remains currently in effect.
(iv) No audit, examination or adjustment relating to any Return filed by the Company or any of its Subsidiaries has been proposed in writing by any Tax authority to the Company, any of its Subsidiaries or any representative thereof. No audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made or threatened in writing by an authority in a jurisdiction where either the Company or any Tax authority of its Subsidiaries does not file Returns that the Company or any of its Subsidiaries is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As of the Balance Sheet Date, Neither the Company does not have nor any Liabilities of its Subsidiaries has any liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance SheetSheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its Subsidiaries has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) Neither the Company nor any of its Subsidiaries has any liabilities for any Taxes, including Transaction Payroll Taxes, that should have been withheld and/or paid by them at any time through and including the Effective Time, relating to (A) the issuance of Company Class A Common Stock to the Israeli Holders of Company Class A Common Stock or (B) the sale by such Israeli Holders of Company Class A Common Stock of Company Class A Common Stock to Parent pursuant to the transactions contemplated by this Agreement.
(vii) The Company has made available to Parent or its legal counsel, copies of all income income, franchise and similar Tax Returns and other material Tax Returns for the Company and each of its Subsidiaries filed for the prior three (3) taxable yearsall periods since December 31, 2006.
(viiviii) There are (and immediately following the Effective Time there will be) no 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 payablepayable and Liens for Taxes that are being contested in good faith and which have been properly reserved on the Current Balance Sheet in accordance with GAAP.
(viiiix) The Neither the Company nor any of its Subsidiaries has not (a) ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return, (b) ever been a party to any Tax sharing, indemnification or allocation agreement with any entity other than the Company and its Subsidiaries, (c) any liability for the Taxes of any person (other than Company and its Subsidiaries), under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law, and including any arrangement for group relief within a jurisdiction or similar arrangement), as a transferee or successor, by contract or agreement, or otherwise and (d) ever been a party to any joint venture, partnership or other arrangement that could be treated as a partnership for Tax purposes.
(x) Neither the Company nor any of its Subsidiaries has been, at any timetime in the five years prior to the Closing Date, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ixxi) 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‑free 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.
(xxii) The Neither the Company nor any of its Subsidiaries has not engaged in a “reportable transaction under transaction” as set forth in Treasury Regulation Section 1.6011-4(b4(b)(2), including a or any transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service IRS has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xixiii) The Each of the Company and its Subsidiaries is and has (A) never 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 a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal resident in any other country for any income Tax Return purpose (other than a group the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group the avoidance of double taxation). Neither the Company nor any of its Subsidiaries is or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (was subject to net income Tax in any jurisdiction other than pursuant to the customary provisions its place of an agreement entered into in the ordinary course incorporation or formation by virtue of having a branch, permanent establishment, place of control and management or other place of business the primary purpose of which is not related to Taxes), or otherwise, and (D) never been a party to any joint venture, partnership or other agreement in that could be treated as a partnership for Tax purposesjurisdiction.
(xiixiv) The Neither the Company nor any of its Subsidiaries will not be required to include any income or gain or exclude any deduction or loss from Taxable taxable income for any Tax period or portion thereof after the Closing as a result of (Aa) any change in method of accounting under Section 481 481(c) of the Code for any Tax period or portion thereof ending on or prior to the Closing DateCode, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing DateCode, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any similar provision of applicable law), (Db) installment sale or open transaction disposition consummated on or (c) prepaid amount, in each case made, entered into or received prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateClosing.
(xiiixv) The Company uses has provided to Parent all documentation relating to, and each of the cash method of accounting for income Tax purposes.
(xiv) The Company and its Subsidiaries is in full compliance with all terms and conditions of of, any Tax exemption, Tax incentive, Tax holiday or other Tax reduction agreement or order order, including the “Approved Enterprise” or “Benefited Enterprise” status of the Company’s Israeli Subsidiary for purposes of Israeli Tax law (each, a “Tax Incentive”), and of a territorial or non-U.S. government with respect to the Company or any of its Subsidiaries. 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.
(xvxvi) The Company is not subject to Tax and its Subsidiaries are in any country other than compliance in all material respects with all applicable United States and Israeli 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 country of incorporation or formation by virtue of having a permanent establishment or other place of business in that countrySubsidiaries.
(xvixvii) Notwithstanding anything in this Agreement to the contrary, Neither the Company makes no representations nor any of its Subsidiaries has requested or warranties regarding the amount, value or condition of, or any limitations on, received a ruling from any Tax asset authority or attribute signed a closing or other agreement with any Tax authority.
(xviii) None of the Company, including but the Company’s Israeli Subsidiary or any of the Company Stockholders (with respect to the Company Capital Stock held by them) is subject to restrictions or limitations pursuant to Part E2 of the Israeli Tax Ordinance (“ITO”) or pursuant to any Tax ruling made in connection with the provisions of Part E2.
(xix) Any related party transaction subject to Section 85A of the ITO conducted between the Company and the Company’s Israeli Subsidiary have been conducted on an arms-length basis in all material respects in accordance with Section 85A of the ITO and each such transaction was documented with a proper transfer pricing study.
(xx) The Company’s Israeli Subsidiary has not limited refunded or deducted any value added tax that it was not so entitled to net operating losses refund or deduct.
(xxi) Neither the Company nor the Company’s Israeli Subsidiary has undertaken any transaction which will require special reporting in accordance with Section 131(g) of the ITO and research and development credits, arising in any Pre-Closing the Israeli Income Tax Period Regulations (each, a “Tax Attribute”Planning Requiring Reporting), 2006 regarding aggressive tax planning.
(xxii) No Company Stockholder holds shares of Company 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, and no payment to any Company Stockholder of any portion of the Adjusted Merger Consideration payable pursuant to this Agreement will result in compensation or other income to such Company Stockholder with respect to which Parent, the ability Company or any Subsidiary of Parent or the Company would be required to deduct or withhold any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingtaxes.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 3.15 hereto, to New Motion’s knowledge:
(i) The Company It has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by New Motion with any and all Taxes concerning or attributable Tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns that are not material to New Motion. All such Returns are true true, correct and correct complete in all material respects and have been completed in accordance with applicable law and (b) timely respects. New Motion has paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid All Taxes that New Motion is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company New Motion has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyNew Motion, nor has the Company New Motion executed any unexpired waiver of any statute of limitations on or extending extended the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company New Motion by any Tax authority is presently in progress, nor has the Company New Motion been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company New Motion has been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to New Motion or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the Company does not have New Motion has no liability for any Liabilities for material unpaid Taxes which have not been accrued for or reserved on New Motion’s balance sheets included in the Current Balance Sheetaudited financial statements for the most recent fiscal year ended, and the Company has not incurred whether asserted or unasserted, contingent or otherwise, other than any Liability liability for unpaid Taxes that may have accrued since the Balance Sheet Date other than end of the most recent fiscal year in connection with the operation of the business of New Motion in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Exchange Agreement (MPLC, Inc.)
Tax Returns and Audits. (i) The Company has (a) as of the Effective Time will have prepared and timely filed or made a timely request for extension for all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law and (b) timely paid all Taxes it is required law, except in any instance where failure to paydo so will not give rise to any future liability.
(ii) The Company has as of the Effective Time: (A) will have paid or accrued all Taxes it is required to pay or accrue whether or not shown on the Returns and (B) will have withheld and remitted in a timely manner with respect to its Employees, stockholders employees all federal and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes taxes that are required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect pursuant to any transaction or event occurring or payment made the Federal Insurance Contribution Act and Taxes that are required to such payees through and including be withheld pursuant to the Closing DateFederal Unemployment Tax Act.
(iii) The Since December 31, 1997, the Company has not been delinquent in the payment of any Tax, nor is there any . There has been no Tax deficiency outstanding, assessed or proposed against the CompanyCompany which has not been resolved with the appropriate tax authorities and paid or properly accrued, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any TaxTax that is still in effect.
(iv) No The Company has not been informed that any audit or other examination of any Tax Return 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that is presently in progress nor are there any claims against the Company is for Taxes for any period or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to periods, and no written notice of any Tax Return filed by the Company outstanding claim for Taxes, whether pending or threatened, has been proposed received by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessis an accrual basis taxpayer.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes taxes not yet due and payable.
(vii) 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 of the Code.
(viii) The Company is not a party to a tax sharing, indemnification or allocation agreement (other than this Agreement).
(ix) The Company is 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 Corporation” real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(ixx) The Company has not constituted either a “distributing corporation” Copies of (A) any Tax examinations, (B) extensions of statutory limitations for the collection or a “controlled corporation” in a distribution assessment of stock intended to qualify for tax‑free treatment under Section 355 Taxes and (C) the Returns of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is for the same or substantially similar last three fiscal years for which Returns have been filed have been delivered to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)SCM.
(xi) The Company has not filed any consent agreement under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (Af) never asset (as defined in Section 341(f)(4) of the Code) owned by the Company.
(xii) The Company has not 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 the Company), (B) never been a party to and does not have any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability liability for the Taxes of another person other than the Company or any Person of its subsidiaries under Treasury Regulation § Treas. Reg. Section 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), ) as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, Neither the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or nor any of its affiliates subsidiaries has constituted a "distributing corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (including x) in the Surviving Corporationtwo years prior to the date of this Agreement or (y) to utilize such Tax Attributes after in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the Closingmeaning of Section 355(e) of the Code) that includes the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (SCM Microsystems Inc)
Tax Returns and Audits. (i1) The As of the Effective Time, the Company has (a) will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law.
(b2) As of the Effective Time, the Company (A) will have timely paid all Taxes it is required to pay.
(ii) The Company has paid or pay and withheld with respect to its Employees, stockholders employees all federal and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act amounts("FICA"), Federal Unemployment Tax Act amounts ("FUTA") and other Taxes required to be paid or withheld, and has timely paid over any such (B) will have accrued on the Current Balance Sheet all Taxes over attributable to the appropriate authorities, periods preceding the Current Balance Sheet and will pay or withhold (not have incurred any liability for Taxes for the period commencing after the date of the Current Balance Sheet and pay over) such Taxes that are required ending immediately prior to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateEffective Time, other than in the ordinary course of business.
(iii3) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(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, and . There has been no correspondence or communications between the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by and any Tax authority that the Company is will or may reasonably be subject expected to taxation result in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to an increase of Taxes under discussion between any taxing authority and the Companypreviously reported.
(v5) As of the Balance Sheet Date, the The Company does not have any Liabilities has no liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the date of the Current Balance Sheet Date other than in the ordinary course of business.
(vi6) The Company has made available to Parent or Parent, its legal counselcounsel and its accountants, copies of all foreign, federal, state and local income and other material Tax all state and local sales and use Returns for the Company filed for the prior three (3) taxable yearsall periods since its inception.
(vii7) There are (and immediately following the Effective Time there will be) no Liens 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.
(viii8) Neither the Company nor 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.
(9) None of the Company's assets is treated as "tax-exempt use property," within the meaning of Section 168(h) of the Code.
(10) The Company has not beenfiled 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.
(11) The Company is not party to any tax sharing, indemnification or allocation agreement nor does the Company owe any amount under any such agreement.
(12) 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 in all material respects on the Company's tax books and records.
(13) 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.
(ix14) 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 or Principal Shareholder, informally by any tax authority to the Company or any representative thereof.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi15) The Company has (Aa) never been a member of an affiliated group (within the meaning of Section 1504(a) of the CodeCode ss.1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was the 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, (Cb) no Liability liability for the Taxes of any Person person (other than Company) under Treasury Regulation § 1.1502Treas. Reg. ss.
1. 1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)contract, or otherwise, and (Dc) never been a party to any joint venture, partnership or other agreement that could be treated as a partnership for Tax purposes.
(xii16) The Company will has not be required to include any income constituted either a "distributing corporation" or gain or exclude any deduction or loss from Taxable income a "controlled corporation" in a distribution of stock qualifying for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting tax-free treatment under Section 481 355 of the Code for any Tax period or portion thereof ending on or (x) in the two years prior to the Closing Datedate of this Agreement, or (By) closing agreement under in a distribution which could otherwise constitute part of a "plan" or "Series of related transactions" (within the meaning of Section 7121 355(e) of the Code) in conjunction with the Merger.
(17) The Company (and any predecessor of the Company) was qualified to make the S corporation election at the time of its election, and has been a validly electing S corporation within the meaning of Section 1361 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 at all times since incorporation of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) Company for U.S. federal and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax state tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Krooss John)
Tax Returns and Audits. (i) The Company has (a) To the extent the failure to do so would materially and adversely impact the Acquired Assets, Buyer’s use of the Acquired Assets or the operation of the Business, as of the Closing Date, Seller and each Seller Affiliate will have prepared and timely filed all income and other material U.S. required federal, state, provincial, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Seller, Seller Affiliates or its operations, their operations and such Tax Returns are or will be true and correct in all material respects and have been or will be completed in accordance with applicable law law.
(ii) To the extent the failure to do so would materially and (b) timely adversely impact the Acquired Assets, Buyer’s use of the Acquired Assets or the operation of the Business, as of the Closing Date, Seller and each Seller Affiliate will have paid all Taxes it is required to pay.
(ii) The Company has paid or pay and will have withheld with respect to its Employees, stockholders Business Employees and other third parties, Persons (and timely paid over to the appropriate Taxing authority) all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company To the extent the failure to do so would materially and adversely impact the Acquired Assets, Buyer’s use of the Acquired Assets or the operation of the Business, neither Seller nor any Seller Affiliate has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the CompanySeller or any Seller Affiliate, nor has the Company Seller or any Seller Affiliate executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of Seller or Parent that is or would be relevant to the Company Business or the Acquired Assets is presently in progress, nor has the Company Seller or Parent been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time Closing there will be) no Liens on the assets of the Company Acquired Assets relating to or attributable to Taxes other than customary Liens for Taxes not yet due and payable.
(viiivi) The Company Seller has not beenno knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within Lien on the meaning of Section 897(c)(2) of the CodeAcquired Assets.
(ixvii) The Company To the extent relevant to the Business or the Acquired Assets, no adjustment relating to any Return filed by Seller or any Seller Affiliate has not constituted either a “distributing corporation” been proposed in writing by any tax authority to Seller or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment under Section 355 of the Codeany Seller Affiliate or any representative thereof.
(xviii) The Company has Seller is not engaged in a reportable transaction under Treasury Regulation Section 1.6011non-4(b), including a transaction that is resident of Canada for the same or substantially similar to one purposes of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)Act.
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Baltimore Technologies PLC)
Tax Returns and Audits. Except as set forth in Exhibit C: ---------------------- ---------
(i) The Company has (a) as of the Closing Date will have prepared and timely filed or made a timely request for extension for all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the ------- Company or its operationsoperations which are required to be filed on or prior to the Closing Date, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to paylaw.
(ii) The Company has as of the Closing Date (A) will have paid or accrued all Taxes it is required to pay or accrue as shown on the Returns and (B) will have withheld and timely remitted with respect to its Employees, stockholders and other third parties, employees all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts taxes and other Taxes required to be paid or withheld, withheld and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateremitted.
(iii) The Company has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities has no liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with USGAAP on the Current Balance Sheet, and whether asserted or unasserted, contingent or otherwise, relating to the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessseven-month period ended December 31, 1996.
(vi) The Company has made available to Parent or its legal counsel, copies of all foreign, federal and state income and other material Tax all state sales and use Returns filed for the Company for the prior three (3) taxable yearsall years as to which any applicable statute of limitations has not expired.
(vii) There are is no mortgage, pledge, security interest or lien or other encumbrance (and immediately following the Effective Time there will beeach a "Lien") no Liens of any sort 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 not beenShareholders have no knowledge of any basis for the assertion of any claim relating or attributable to Taxes which, at if adversely determined, would result in any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) Lien on any material assets of the CodeCompany.
(ix) The As of the Closing, there will not be any contract, agreement, plan or arrangement (except as may be contemplated in 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 constituted either a “distributing corporation” be deductible by the Company as an expense under Sections 162, 280G or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment under Section 355 404 of the Code.
(x) The Company has is not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the Company), (B) never been a party to any Tax a tax sharing, indemnification or allocation agreement, agreement nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiiixi) The Company uses the cash accrual method of accounting for income Tax purposes.
(xiv) The Company tax purposes and its tax basis in its assets for purposes of determining its future amortization, depreciation and other federal income tax deductions is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect accurately reflected on the continued validity Company's tax books and effectiveness of any such Tax Incentiverecords.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Merger Agreement (Usweb Corp)
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by the Company with any and all Taxes concerning or attributable Tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns which are not material to Company. All such Returns are true true, correct and correct complete in all material respects and have been completed in accordance with applicable law and (b) timely respects. The Company has paid all Taxes it is required shown to paybe due on such Returns.
(ii) The All Taxes that the Company has paid is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authoritiesproper governmental authorities to the extent due and payable, and will pay except where failure to withhold or withhold (and pay over) such Taxes that are required collect would not be expected, individually or in the aggregate, to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including have a Material Adverse Effect on the Closing Date.Company
(iii) The Company has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the Company, nor has the Company executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax, except where any such delinquency, deficiency, or waiver would not be expected, individually or in the aggregate, to have a Material Adverse Effect on the Company.
(iv) No To the Knowledge of the Stockholders, no audit or other examination of any Tax Return of the Company by any Tax authority is presently in progress, nor . The Company has the Company not been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company has been proposed in writing, formally or informally, by any Tax authority. The authority to the Company is not a party or, to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Knowledge of the Balance Sheet DateStockholders, the Company does not have to any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessrepresentative thereof.
(vi) The Company has made available to Parent no liability for any material unpaid Taxes which has not been accrued for or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens reserved on the assets Company’s balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, whether asserted or unasserted, contingent or otherwise, which is material to the Company, other than any liability for unpaid Taxes that may have accrued since the end of the most recent fiscal year in connection with the operation of the business of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesbusiness.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mercator Partners Acquisition Corp.)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, operations ("RETURNS") when due and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, Employees all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts("FICA"), Federal Unemployment Tax Act amounts ("FUTA") and other Taxes required to be paid or withheld, and has timely paid over any such Taxes taxes withheld over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, assessed or proposed against the Company, nor has and the Company has not executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the The Company does not have any Liabilities liabilities for unpaid Taxes for periods ending on or before the Balance Sheet Date which have not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any Liability liability for Taxes since the Current Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income foreign, federal, state and other material Tax local income, payroll and unemployment Returns and all state and local property and sales and use Returns for the Company filed for the prior three (3) taxable yearsall periods since its inception that have been requested by Parent.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beenTo the Knowledge of the Company, at there is no basis for the assertion of any timeclaim relating or attributable to Taxes which, a “United States Real Property Holding Corporation” 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 897(c)(2168(h) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction filed any consent agreement under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 341(f) of the types Code or agreed to have Section 341(f)(4) of transactions that the Internal Revenue Service has determined Code apply to be any disposition of a Tax avoidance transaction and identified subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)the Company.
(xi) The Company has (Aa) never 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 group the common parent of which was the Company), (Bb) never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (Cc) no Liability liability for the Taxes of any Person person (other than Company) under Treasury Regulation § Section 1.1502-6 (or any similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes)or agreement, or otherwise, otherwise and (Dd) never been a party to any joint venture, partnership or other agreement arrangement that could be treated as a partnership for Tax purposes.
(xii) The Company will has not be required to include been, at any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after time, a "United States Real Property Holding Corporation" within the Closing as a result meaning of (ASection 897(c)(2) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateCode.
(xiii) The No adjustment relating to any Return filed by the Company uses has been proposed formally or, to the cash method Knowledge of accounting for income Tax purposesthe Company, informally by any tax authority to the Company or any representative thereof.
(xiv) The Company is has not constituted either a "distributing corporation" or a "controlled corporation" in full compliance with all terms and conditions a distribution of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation stock intended to qualify for tax-free treatment under Section 355 of the transactions contemplated by Code (x) in the two (2) years prior to the date of this Agreement will not have any adverse effect on or (y) in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the continued validity and effectiveness meaning of any such Tax Incentive.
(xvSection 355(e) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising Code) in any Pre-Closing Tax Period (each, a “Tax Attribute”), or conjunction with the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingMerger.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Brocade Communications Systems Inc)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating Returns required to any and all Taxes concerning or attributable to the Company or its operations, and such be filed by it. Such Tax Returns are true true, accurate and correct complete in all material respects and have been completed in accordance with applicable law and (b) timely respects. The Company has paid all Taxes it is required that are due and payable by it, whether or not shown to paybe due on such Tax Returns.
(ii) The Company has paid or timely withheld with respect to its Employeesemployees, stockholders owners and other third parties, parties (and timely paid over to the appropriate Taxing Authorities) all U.S. federal, state state, local, territorial and non-U.S. income and payroll Taxes and social security charges and similar feesrequired to be withheld by it, including Taxes pursuant to the Federal Insurance Contribution Act amounts, and the Federal Unemployment Tax Act amounts (and other similar provisions under applicable law), and all other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Dateby it.
(iii) No Tax deficiency with respect to any Tax period for which all Taxes are due and payable has been assessed, or to the Company’s Knowledge, proposed by a Taxing Authority against the Company. The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the extension of any period for the assessment or collection of any Tax, which waiver or extension is still in effect.
(iv) No written notice has been received by the Company that any audit or other examination of any Tax Return of the Company by any Taxing Authority is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination, and the Company does which request has not have Knowledge that any such action or proceeding is being contemplatedyet been resolved. No written claim has ever been made in writing by any Tax authority a Taxing Authority that the Company is or may be subject to taxation in a jurisdiction in which where it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Datedate of the balance sheet included in the Financial Statements for the Most Recent Period End, the Company does not have had no liability for any Liabilities for unpaid Taxes (whether or not shown to be due on any Tax Return), whether asserted, unasserted, contingent or otherwise, which have had not been accrued for or reserved on the Current Balance Sheetsuch balance sheet, and the Company has not incurred any Liability liability for unpaid Taxes since the Balance Sheet Date such balance sheet date, other than in the ordinary course of business.
(vi) There are no Liens relating or attributable to Taxes on the assets of the Company, other than Permitted Liens.
(vii) The Company has made available to Parent Buyer or its legal counsel, copies of all federal and state income and other material Tax Returns for the Company filed for taxable periods with respect to which the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets statute of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payablelimitations has expired.
(viii) The Company has not been, at any time, been a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ixCode during the applicable period specified in Section 897(c)(1)(A)(ii) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xvix) The Company is not subject to Tax in any country jurisdiction other than its country of incorporation or formation by virtue of having a permanent establishment or other fixed place of business in that country.
(xvix) Notwithstanding anything There are no adjustments under Section 481 of the Code (or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax laws) that are required to be taken into account by the Company in any period ending after the Closing Date by reason of a change in method of accounting in any taxable period ending on or before the Closing Date or as a result of the consummation of the transactions contemplated by this Agreement Agreement.
(xi) The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of any (i) 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 contraryClosing Date, (ii) prepaid amount received on or prior to the Closing Date, (iii) installment sale or other open transaction disposition made on or prior to the Closing Date or (iv) any election made pursuant to Section 108(i) of the Code on or prior to the Closing Date.
(xii) The Company makes no representations or warranties regarding has not been a member of an affiliated group (as defined in Section 1504 of the amount, value or condition ofCode) filing a consolidated Tax Return. The Company does not have any liability for the Taxes of any other Person (other than the Company) under Treasury Regulation section 1.1502-6, or any limitations onsimilar provision of state, local or foreign law, as a transferee, successor, by contract or otherwise.
(xiii) The Company has never engaged in any “reportable transaction” or “listed transaction” for purposes of Treasury Regulation sections 1.6011-4(b) or 301.6111-2(b)(2) or any analogous provision of state, local or foreign Tax asset or attribute law. The Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code.
(xiv) To the Company’s Knowledge, there is no limitation on the utilization by the Company or any Subsidiary of its net operating losses, built-in losses, Tax credits, or similar items under Sections 382, 383 or 384 of the Code or comparable provisions of foreign state or local Law (other than any such limitation arising as a result of the consummation of the transactions contemplated by this Agreement).
(xv) There is no contract, agreement, plan or arrangement to which the Company is a party as of the date of this Agreement, including but not limited to net operating losses and research and development creditsthe provisions of this Agreement, arising in that, individually or collectively, could give rise to the payment of any Pre-Closing Tax Period amount that would not be deductible pursuant to Section 280G of the Code. There is no contract, agreement, plan or arrangement to which Company is a party to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code or taxes paid under Section 409A of the Code.
(eachxvi) The Company is not a party to any contract, agreement or arrangement that is a “Tax Attribute”nonqualified deferred compensation plan” subject to Section 409A of the Code. Each outstanding option, stock appreciation right, or other similar right to acquire Common Stock of the Company or other Equity Rights, granted to or held by an individual or entity who is or may be subject to United States taxation, (1) has an exercise price that is not less than the fair market value of the underlying equity as of the date such option, stock appreciation right or other similar right was granted, (2) has no feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option, stock appreciation right or other similar right, (3) to the extent it was granted after December 31, 2004, was granted with respect to a class of stock of the Company that is “service recipient stock” (within the meaning of the applicable regulations under Section 409A), or and (4) has been properly accounted for in accordance with GAAP in the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingFinancial Statements.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company has (a) prepared and its Subsidiaries have timely filed all income and other Tax Returns required to be filed by the Company or its Subsidiaries with any Tax authority prior to the date hereof, except such Tax Returns that are not material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company or its operations, and Subsidiaries. All such Tax Returns are true true, correct and correct complete in all material respects respects. The Company and its Subsidiaries have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due and payable on such Tax Returns.
(ii) The All material Taxes that the Company has paid and its Subsidiaries are required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has and its Subsidiaries have not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed in writing or assessed or proposed against the CompanyCompany or its Subsidiaries, nor has have the Company or its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax. To the Company’s knowledge, the Company and its Subsidiaries have complied with all Legal Requirements with respect to payments made to third parties and the withholding of any payment of withheld Taxes and has timely withheld from employee wages and other payments and timely paid over in full to the proper taxing authorities all amounts required to be so withheld and paid over for all periods.
(iv) No To the knowledge of the Company, no audit or other examination of any Tax Return of the Company and its Subsidiaries by any Tax authority is presently in progress, nor has the Company or any Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company or any Subsidiary has been proposed in writing, formally or informally, by any Tax authority. The authority to the Company is not a party to or bound by any closing Subsidiary or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the The Company does not and its Subsidiaries have no liability for any Liabilities for material unpaid Taxes which have not been accrued for or reserved on the Current Balance SheetCompany’s balance sheets included in the Audited Financial Statements, and whether asserted or unasserted, contingent or otherwise, other than any liability for unpaid Taxes that may have accrued since the end of the most recent fiscal year in connection with the operation of the business of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Share Purchase Agreement (Garnero Group Acquisition Co)
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company has (a) prepared and its Subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by them with any and all Taxes concerning or attributable Tax authority prior to the date hereof, except such Returns that are not material to the Company or and its operations, and Subsidiaries. All such Tax Returns are true true, correct and correct complete in all material respects respects. The Company and its Subsidiaries have been completed in accordance with applicable law and (b) timely paid all material Taxes it is required shown to paybe due and payable on such Returns.
(ii) The All material Taxes that the Company has paid and its Subsidiaries are required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has and its Subsidiaries have not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any of its Subsidiaries, nor has the Company or any of its Subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any material Tax. The Company and its Subsidiaries have complied in all material respects with all Legal Requirements with respect to payments made to third parties and the withholding of any payment of withheld Taxes and has timely withheld from employee wages and other payments and timely paid over in full to the proper taxing authorities all material amounts required to be so withheld and paid over for all periods.
(iv) No To the knowledge of the Company, no audit or other examination of any Tax Return of the Company or any of its Subsidiaries by any Tax authority is presently in progress, nor has the Company or any of its Subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, No material adjustment relating to any Returns filed by the Company does not have or any Liabilities of its Subsidiaries has been proposed in writing, formally or informally, by any Tax authority to the Company or any of its Subsidiaries or any representative thereof.
(vi) Neither the Company nor any of its Subsidiaries has any material liability for any unpaid Taxes which have has not been accrued for or reserved on the Current Balance SheetCompany’s balance sheets included in the Audited Financial Statements or the Unaudited Financial Statements, and other than any liability for unpaid Taxes that may have accrued since the end of the most recent fiscal year in connection with the operation of the business of the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than and its Subsidiaries in the ordinary course of business.
(vi) The Company has made available to Parent business or its legal counsel, copies of all income and other material Tax Returns any liability for unpaid Taxes incurred in connection with the Company for the prior three (3) taxable yearstransactions contemplated by this Agreement.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of Neither the Company relating nor any of its Subsidiaries has taken, intends to take, or attributable has agreed to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not beentake any action or is aware of any fact or circumstance that would prevent or impede, at any timeor would reasonably be expected to prevent or impede, the Merger from qualifying as a “United States Real Property Holding Corporationreorganization” within the meaning of Section 897(c)(2368(a) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Pivotal Acquisition Corp)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed (taking into account valid extensions of the time for filing) all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) relating returns required to any have been filed and all Taxes concerning or attributable to the Company or its operations, and such Tax Returns are true returns were true, correct and correct complete in all material respects respects. All Taxes owed by the Company (whether or not shown on any Tax return) that have become due and payable have been completed paid. The Company is not currently the beneficiary of any extension of time within which to file any Tax return. No claim has ever been made by an authority in accordance with applicable law and (b) timely paid all Taxes a jurisdiction where the Company does not file Tax returns that it is required or may be subject to paytaxation by that jurisdiction.
(ii) The Company has withheld and paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be have been withheld and paid in connection with amounts paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect owing to any transaction employee, independent contractor, creditor, member, or event occurring or payment made to such payees through and including the Closing Dateother third party.
(iii) The Company and Shareholder have made available (or will make available through the date of Closing) to Purchaser (i) correct and complete copies of all Tax returns of the Company and (ii) any examination reports, statements of deficiencies and assessments by any governmental authority against or agreed to by the Company since the Company’s formation. The Company does not expect any authority to assess additional Taxes for any period for which Tax returns have been filed. There is no dispute or claim concerning any Tax liability of the Company claimed, threatened or otherwise raised by any authority. The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of waived any statute of limitations on in respect of Taxes or extending the period for the agreed to any extension of time with respect to a Tax assessment or collection deficiency.
(iv) All material liabilities of the Company for any unpaid Taxes (whether or not shown to be due on any Tax return) have either (A) been accrued for or reserved on the Company financial statements in accordance with GAAP or (B) with respect to material unpaid Taxes that may have accrued since the Interim Balance Sheet Date in connection with the operation of the business of the Company have been recorded on the books of the Company in the ordinary course.
(v) There are no liens or security interests on any of the assets of the Company or the Shares that arose in connection with any failure (or alleged failure) to pay any Tax.
(ivvi) The Company has not filed any consent agreement under Section 341(f) of the Internal Revenue Code of 1986 (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)(2) of the Code) owned by the Company. No audit or other examination of any Tax Return property of the Company is presently in progress, nor has “tax-exempt use property” within the Company been notified in writing meaning of any request for such an audit or other examination, and Section 168(h) of the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authorityCode. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect lease made pursuant to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(vformer Section 168(f)(8) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course Internal Revenue Code of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years1954.
(vii) There are (and immediately following the Effective Time there The Company is not under any obligation to make a payment that will be) no Liens on the assets not be deductible because of the application of Sections 280G, 404, 162(m) and/or 4999 of the Code. The Company relating has disclosed on its Tax returns all positions taken therein that could give rise to a substantial understatement (i) of federal income tax under Code Section 6662 or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viiiii) of any Tax under a similar provision of state, local or foreign Tax law. The Company has not been, at engaged in any time, transaction which would be treated as a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4 or otherwise been involved in a transaction which would require it to disclose a “reportable transaction.” The Company has not been a member of an affiliated group filing a consolidated federal income Tax return and does not have any liability for the Taxes of any Person (other than the Company) under Treasury Regulations Section 1.1502-6, or any similar provision of state, local or foreign law, as a transferee or successor, by contract, or otherwise. The Company has not been a party to any Tax allocation or sharing agreement. The Company is not currently and has not been a United States Real Property Holding Corporation” real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(viii) The Company is and has been in full compliance with all terms and conditions of any Tax exemptions, Tax holidays or other Tax reduction agreements. The consummation of the transactions contemplated herein will not have any material adverse effect on the continued validity and effectiveness of any such Tax exemption, Tax holiday or other Tax reduction agreement or order.
(ix) The Neither the Company nor any of its Subsidiaries has not constituted either a “distributing distribution corporation” or a “controlled corporation” in a distribution of stock intended to qualify qualifying for tax‑free tax-free treatment under Code Section 355 (a) in the two year prior to the date of this Agreement or (b) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the Codemeaning of Code Section 355(c)).
(x) The Company has not engaged not, with respect to any open taxable period, applied for and been granted permission to adopt a change in a reportable transaction its method of accounting requiring adjustments under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 481 of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, Code or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)comparable state or foreign law.
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), or otherwise, and (D) never been a party to partner in any joint venture, partnership or other agreement that could be treated entity classified as a partnership for federal income Tax purposes.
(xii) The Company has not made an election under Treasury Regulations Section 301.7701-3 with respect to any entity.
(xiii) The Company will not be required to include any item of income or gain in, or exclude any item of deduction or loss from Taxable from, taxable income for any Tax taxable period (or portion thereof thereof) ending prior to, on, or after the Closing Date as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company intercompany gain or any excess loss account under described in Treasury Regulations under Code Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any corresponding or similar provision of applicable federal state, local or foreign income Tax law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) Since July 1, 2004, the Company has been a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code. The Company is in full compliance with all terms and conditions of has no unpaid liability for any Tax exemptionon passive income under Code Section 1375, or for any 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 Incentivebuilt-in gains under Section 1375.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contraryAt all times since July 1, the Company makes no representations or warranties regarding the amount2004, value or condition of, or any limitations on, any Tax asset or attribute all of the Companyownership interests of Shareholder have been owned exclusively by Xxxx X. Xxxxxxx, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability none of Parent Shareholder or any of its affiliates (including the Surviving Corporation) Affiliates have taken any action to utilize such Tax Attributes after the Closingcause Shareholder to be treated as other than a disregarded entity for federal or state income tax purposes or any action inconsistent with Shareholder’s status as a disregarded entity for federal or state income tax purposes.
Appears in 1 contract
Samples: Stock Purchase Agreement (Horizon Health Corp /De/)
Tax Returns and Audits. (i) The Company has (a) prepared SPI and each of its subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any Taxes required to be filed by SPI and all Taxes concerning or attributable each of its subsidiaries, except such Returns which are not material to the Company or its operationsSPI, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid or SPI and each of its subsidiaries have withheld with respect to its Employees, stockholders their employees all federal and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar feestaxes, Federal Insurance Contribution Act amounts("FICA") taxes, Federal Unemployment Tax Act amounts ("FUTA") taxes and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither SPI nor any of its subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, or to SPI's knowledge, proposed or assessed against SPI or proposed against the Companyany of its subsidiaries, nor has the Company SPI or any of its subsidiaries executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company SPI or any of its subsidiaries is presently in progress, nor has the Company SPI or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company SPI or any of its subsidiaries has been proposed formally or informally by any Tax authority. The Company is not a party authority to SPI or bound by any closing of its subsidiaries or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As Neither SPI nor any of the Balance Sheet Date, the Company does not have its subsidiaries has any Liabilities liability for unpaid Taxes which have has not been accrued for or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available , whether asserted or unasserted, contingent or otherwise, which is material to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable yearsSPI.
(vii) There are (and immediately following is no contract, agreement, plan or arrangement, including but not limited to the Effective Time there will be) no Liens on provisions of this Agreement, covering any employee or former employee of SPI or any of its subsidiaries that, individually or collectively, could give rise to the assets payment of the Company relating any amount that would not be deductible pursuant to Sections 280G, 404 or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2162(m) of the Code.
(ixviii) The Company Neither SPI 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‑free treatment filed any consent agreement under Section 355 341(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 SPI.
(ix) Neither SPI nor any of its subsidiaries is party to or has any obligation under any tax-sharing, tax indemnity or tax allocation agreement or arrangement.
(x) The Company has not engaged in Except as may be required as a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one result of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction Merger, SPI and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never its subsidiaries have not 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from adjustment in Taxable income for any Tax period (or portion thereof after thereof) pursuant to Section 481 or Section 263A of the Closing Code or any comparable provision under state or foreign Tax laws as a result of transactions, events or accounting methods employed prior to the Closing.
(xi) None of the assets are tax exempt use property within the meaning of Section 168(h) of the Code.
(xii) The SPI Schedules list (A) any change in method of accounting under Section 481 of the Code for any foreign Tax period or portion thereof ending on or prior to the Closing Dateholidays, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Dateintercompany transfer pricing agreements, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated arrangements that have been established by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent SPI or any of its affiliates subsidiaries with any Taxing authority and (including the Surviving CorporationC) to utilize such Tax Attributes after the Closingany expatriate programs or policies affecting SPI or any of its subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Supergen Inc)
Tax Returns and Audits. (i) The Company has (a) prepared and the Subsidiaries have timely filed (subject to such extensions as may be provided by the Code) all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information returns or statements and reports (“Tax Returns”) relating to Taxes, including any schedule or attachment, required to be filed by the Company and all Taxes concerning or attributable the Subsidiaries with any Tax authority, except such Returns which are not material to the Company or its operations, the Subsidiaries. All such Returns were correct and such Tax Returns are true and correct complete in all material respects and have been completed in accordance with applicable law law. The Company and (b) timely the Subsidiaries have paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid or and the Subsidiaries, as of the Effective Time, will have withheld with respect to its Employees, stockholders and other third parties, their employees all U.S. federal, state and non-U.S. income applicable Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amountsAct, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any except such Taxes over which are not material to the appropriate authorities, and will pay Company or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateSubsidiaries.
(iii) The Neither the Company nor any Subsidiary has not been delinquent in the payment of any Tax, nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyCompany or any Subsidiary, nor has the Company or any Subsidiary executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any Subsidiary by any Tax authority is presently in progress, nor has the Company or any Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company or any Subsidiary has been proposed in writing formally or informally by any Tax authorityauthority to the Company or any representative thereof.
(vi) Neither the Company nor any Subsidiary has any liability for any material unpaid Taxes which has not been accrued for or reserved on the books of the Company or the Subsidiaries in accordance with GAAP, whether asserted or unasserted, contingent or otherwise.
(vii) Except as set forth in Schedule 2.20, there is no contract, agreement, plan or arrangement to which the Company or any Subsidiary is a party as of the date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or former employee of the Company that, individually or collectively, would reasonably be expected to give rise to the payment of any amount that would not be deductible pursuant to Sections 162(m), 280G or 404 of the Internal Revenue Code of 1986, as amended (the “Code”). The There is no contract, agreement, plan or arrangement to which the Company is a party or by which it is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code.
(viii) Except as set forth in Schedule 2.20, neither the Company nor any Subsidiary (A) has ever been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which is the Company), (B) is not a party to any Tax sharing or bound Tax allocation agreement, arrangement or understanding, (C) is not liable for the Taxes of any other person 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 (D) is not a party to any closing joint venture, partnership or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyarrangement that could be treated as a partnership for income Tax purposes.
(vix) As None of the Balance Sheet Date, the Company does not have Company’s or any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There Subsidiary’s assets are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” tax exempt use property within the meaning of Section 897(c)(2168(h) of the Code.
(ixx) The Neither the Company nor any Subsidiary has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify qualifying for tax‑free tax-free treatment under Section 355 of the Code.
Code (xA) The Company has not engaged in the two years prior to the date of this Agreement or (B) in a reportable transaction under Treasury Regulation distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 355(e) of the types of transactions that Code) in conjunction with the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)Merger.
(xi) The Company has and the Subsidiaries will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Effective Time as a result of:
(A) never been a member change to method of an affiliated group (within accounting for a taxable period ending on or prior to 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 the Company), Effective Time;
(B) never been a party to any Tax sharing, indemnification or allocation "closing agreement, nor does " as described in Section 7121of the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 Code (or any corresponding or similar provision of state, local or non-U.S. foreign income Tax law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, Effective Time;
(C) deferred inter-company gain intercompany transactions or excess loss account under accounts described in Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any corresponding or similar provision of applicable state, local or foreign income Tax law), ;
(D) an installment sale or open transaction disposition consummated made on or prior to the Closing Date, or Effective Time; or
(E) a prepaid amount received on or prior to after the Closing DateEffective Time.
(xii) The Company and the Subsidiaries have not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(xiii) The Company uses and the cash method Subsidiaries have disclosed on their Tax Returns all positions taken therein that could give rise to a substantial understatement of accounting for federal income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions within the meaning of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation Section 6662 of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
Code (xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations oncorresponding or similar provision of state, any local or foreign income Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”law), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.15 hereto:
(i) The Company PRWT has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by PRWT with any and all Taxes concerning or attributable Tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns that are not material to PRWT. All such Returns are true true, correct and correct complete in all material respects and have been completed in accordance with applicable law and (b) timely respects. PRWT has paid all Taxes it is required shown to paybe due and payable on such Returns.
(ii) The Company has paid All Taxes that PRWT is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company PRWT has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyPRWT, nor has the Company PRWT executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax. PRWT has complied with all Legal Requirements with respect to payments made to third parties and the withholding of any payment of withheld Taxes and has timely withheld from employee wages and other payments and timely paid over in full to the proper taxing authorities all amounts required to be so withheld and paid over for all periods.
(iv) No To the knowledge of PRWT, no audit or other examination of any Tax Return of the Company PRWT by any Tax authority is presently in progress, nor has the Company PRWT been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company PRWT has been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to PRWT or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the Company does not have PRWT has no liability for any Liabilities for unpaid Taxes which have not been accrued for or reserved on PRWT’s balance sheets included in the Current Balance SheetAudited Financial Statements or the Unaudited Financial Statements, and the Company has not incurred whether asserted or unasserted, contingent or otherwise, other than any Liability liability for unpaid Taxes that may have accrued since the Balance Sheet Date other than end of the most recent fiscal year in connection with the operation of the business of PRWT in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose none of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior material to the Closing Datebusiness, (B) closing agreement under Section 7121 results of the Code executed on operations or prior to the Closing Datefinancial condition of PRWT or, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A)if any such amount is material, (B) and (C), under any similar provision of applicable law), (D) installment sale or open transaction disposition consummated on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect it has been accrued on the continued validity books and effectiveness records of any such Tax IncentivePRWT in accordance with U.S. GAAP.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (KBL Healthcare Acquisition Corp III)
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements All Tax Returns and reports of BRS-HCC for all periods and partial periods ending as of or before the Effective Time of the Merger (the “Covered Tax Periods”) shall be prepared by or under the supervision and direction of Bruckmann, Rxxxxx, Xxxxxxxx & Co., Inc. (“Tax ReturnsBRS”) relating to any and all Taxes concerning or attributable to the Company or its operationsrepresentatives or advisers, and the expense thereof shall be borne by BRS. HCC-Inc. shall cooperate with BRS in the preparation of all such Tax Returns are true and correct in all material respects reports and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld audit by any Governmental Authority with respect to any transaction or event occurring or payment made to such payees through Covered Tax Period. BRS shall have sole and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Taxcomplete authority, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return behalf of the Company is presently in progressParties and the BRS-HCC Stockholders, nor has the Company been notified in writing of over any request for such an audit or other examinationamendment, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing audit by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity Authority, with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority Covered Tax Period and the Company.
(v) As of the Balance Sheet DateTax Returns and reports filed with respect to any Covered Tax Period, the Company does not have including discretion to settle any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheetsuch audit provided that HCC-Inc. shall be entitled to review all such Tax Returns and reports and participate in all such audits at its own expense, and the Company has not incurred any Liability for provided further that no liability shall be imposed on HCC-Inc. and all such Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material amounts payable by BRS-HCC with respect to such Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable audits with respect to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Covered Tax Period (eachincluding Taxes payable by BRS-HCC or HCC-Inc. by reason of the BRS-HCC Merger) shall be paid by the BRS-HCC Stockholders and deemed to be included as part of the Damages (as defined herein) (collectively, a the “Covered Tax Period Liabilities”). HCC-LLC and HCC-Inc. shall make tax distributions to the Members in accordance with the resolutions of the Board of Directors of HCC-LLC on February 25, 2008 (the “Tax AttributeDistributions”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 7.1.11:
(i) The Company has (a) Transferor as of the Closing Date will have prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”"RETURNS") relating to any and all Taxes concerning or attributable to the Company Transferor or its operations, operations and such Tax Returns are will be true and correct in all material respects and will have been completed in accordance with applicable law and in all material respects.
(bii) timely Transferor as of the Closing Date: (A) will have paid or accrued all material Taxes it is required to pay.
pay or accrue and (iiB) The Company has paid or will have withheld with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Transferor has not been adjudicated delinquent by any Tax Authority in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyTransferor, nor has the Company Transferor executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Transferor is presently in progress, nor has the Company Transferor been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company Transferor does not have any Liabilities material liabilities for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against on the Current current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and Transferor has no knowledge of any basis for the Company has not incurred assertion of any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesssuch liability attributable to Transferor, its assets or operations.
(vi) The Company Transferor has made available provided to Parent or its legal counsel, Acquiror copies of all federal and state income and other material all state sales and use Tax Returns filed for the Company for the prior three (3) taxable yearsfiscal years 2000 and 2001.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no Liens material liens, pledges, charges, claims, security interests or other encumbrances of any sort ("LIENS") on the assets of the Company Transferor relating to or attributable to Taxes other than Liens for Taxes not yet due and payableTaxes.
(viii) The Company Transferor 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 Transferor.
(ix) None of Transferor's assets are treated as "tax- exempt use property" within the meaning of Section 168(h) of the Code.
(x) As of the Closing Date, Transferor will not be a party to any contract, agreement, plan or arrangement, including but not limited to the provisions of this Agreement, covering any employee or former employee of Transferor that could obligate Transferor to pay any amount that would not be deductible pursuant to Section 280G of the Code.
(xi) Transferor has not beenfiled any consent agreement under Section 341(f) of the Code nor 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 Transferor.
(xii) Transferor is not a party to a tax sharing or allocation agreement nor does Transferor owe any amount under any such agreement.
(xiii) Transferor is not, and has not 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.
(ixxiv) The Company has not constituted either a “distributing corporation” or a “controlled corporation” Transferor's tax basis in a distribution its assets for purposes of stock intended to qualify for tax‑free treatment under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)determining its future amortization, including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction depreciation and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into tax deductions is accurately reflected on Transferor's tax books and records in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesall material respects.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alternative Construction Company, Inc.)
Tax Returns and Audits. Except as set forth in Schedule 2.19 hereto:
(i) The Company Grass Roots has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax Returns”) relating to Taxes ("Returns") required to be filed by it with any and all Taxes concerning or attributable tax authority prior to the Company or its operationsdate hereof, and except such Tax Returns which are not material to Grass Roots. All such Returns are true true, correct and correct complete in all material respects respects. Grass Roots and each Subsidiary have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid All Taxes that Grass Roots is required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company Grass Roots has not been delinquent in the payment of any Tax, material Tax nor is there any material Tax deficiency outstanding, proposed or assessed or proposed against the CompanyGrass Roots, nor has the Company Grass Roots executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Grass Roots by any Tax authority is presently in progress, nor has the Company Grass Roots been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company Grass Roots has been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to Grass Roots or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the Company does not have Grass Roots has no liability for any Liabilities for material unpaid Taxes which have not been accrued for or reserved on Grass Roots' balance sheet included in the Current Balance Sheetunaudited financial statements for the most recent fiscal year ended December 31, and the Company has not incurred 2009, whether asserted or unasserted, contingent or otherwise, which is material to Grass Roots, other than any Liability liability for unpaid Taxes that may have accrued since the Balance Sheet Date other than end of the most recent fiscal year in connection with the operation of the business of Grass Roots in the ordinary course of business.
(vi) The Company has made available , none of which is material to Parent the business, results of operations or its legal counsel, copies financial condition of all income and other material Tax Returns for the Company for the prior three (3) taxable yearsGrass Roots.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company Grass Roots has not beentaken any action and does not know of any fact, at any timeagreement, plan or other circumstance that is reasonably likely to prevent the Transaction from qualifying as a “United States Real Property Holding Corporationreorganization” within the meaning of Section 897(c)(2368(a) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company taxable year of DSI and its Subsidiaries ---------------------- ends January 31. DSI has (a) prepared duly and timely filed or caused to be filed all tax returns for the past six (6) years (collectively the "Tax Returns") required to ----------- be filed on behalf of DSI and its Subsidiaries and has paid in full or fully reserved against in the Financial Statements all taxes, interest, penalties, assessments and deficiencies shown to be due or claimed in such tax returns to be due on behalf of DSI and its Subsidiaries to foreign, federal, state or local taxing authorities (including taxes on properties, income, franchises, licenses, sales, use and payrolls). The Tax Returns are to Xxxx' knowledge correct based on current tax law, and neither DSI nor its Subsidiaries are required to pay any other taxes except as shown in such Tax Returns. The income tax returns filed by DSI or its Subsidiaries have not been, and are not being, audited by the Internal Revenue Service or other applicable taxing authorities for any period. All taxes or estimates thereof that are shown to be due, or are claimed or asserted by any taxing authority to be due, have been timely and appropriately paid or contested. Except for amounts not yet due and payable, all tax liabilities to which the properties of DSI or its Subsidiaries are known by Xxxx to be subject have been paid and discharged or contested. The provisions for income and other material U.S. federaltaxes payable reflected in the Financial Statements make adequate provision for all then accrued and unpaid taxes of DSI and its Subsidiaries. There are no tax liens to Xxxx' knowledge (other than liens for taxes which are not yet due and payable) on any of the property of DSI or its Subsidiaries, statenor are there any pending or, local to Xxxx' knowledge, threatened examinations or tax claims. DSI has not granted any extensions of limitation periods applicable to tax claims or filed a consent under Section 341(f) of the Code relating to collapsible corporations. Except jurisdictions in which DSI and non-U.S. its Subsidiaries voluntarily file tax returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company no claim has been made by a taxing authority that either DSI or its operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required to pay.
(ii) The Company has paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company Subsidiaries is or may be subject to taxation by that jurisdiction. True and complete copies of all federal, foreign, state and local income and other tax returns, of DSI or its Subsidiaries since January 31, 1993 that are in DSI's or its Subsidiaries' possession, have been delivered to Buyer, and the same are listed in Section 3.8 of the Disclosure Schedule. Nether DSI nor its Subsidiaries is a jurisdiction in which it does not file Tax Returnsparty to, or bound by, any tax indemnity, tax sharing or tax allocation agreement. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company Neither DSI nor its Subsidiaries is not a party to any agreement that has resulted or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Datewould result, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course payment of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” "excess parachute payments" within the meaning of Section 897(c)(2) 280G of the Code.
(ix) The Company . Neither DSI nor its Subsidiaries 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never ever been a member of an "affiliated group (within the meaning of group," as defined in Section 1504(a) of the Code. All positions taken on federal Tax Returns that could give rise to a penalty for substantial understatement pursuant to Section 6662(d) filing of the Code are believed to have been disclosed on such Tax Returns. Neither DSI nor its Subsidiaries is a consolidated federal income Tax Return (other than a group the common parent of which was the 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, (C) no Liability for the Taxes partner of any Person under Treasury Regulation § 1.1502-6 partnership. No consent to the application of Section 341(f)(2) of the Code (or any similar provision predecessor thereof) has been made or filed by or with respect to any of state, local DSI or non-U.S. law, including its Subsidiaries or any arrangement for group of their assets and properties. Neither DSI nor its Subsidiaries has agreed to or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than is presently required to make any adjustment pursuant to Section 481(a) of the customary provisions Code (or any predecessor provision) by reason of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in any accounting method of accounting under Section 481 of the Code DSI or its Subsidiaries; neither DSI or its Subsidiaries has any application pending with any taxing authority requesting permission for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code changes in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash accounting method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday DSI or other Tax reduction agreement or order (each, a “Tax Incentive”)its Subsidiaries, and the consummation I.R.S. has not proposed any such adjustment or change in accounting method therefor. Neither DSI nor its Subsidiaries has been or is in violation (or with notice or lapse of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness time or both, would be in violation) of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement applicable law relating to the contrarypayment of withholding of taxes. DSI and its Subsidiaries have duly and timely withheld from salaries, wages and other compensation and paid over to the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited appropriate taxing authorities all amounts required to net operating losses be so withheld and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingpaid over for all periods under all applicable laws.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Section 2.13(b) of the Disclosure Schedule:
(i) The Company has On or before the Closing Date, Seller shall have (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports required to be filed on or before the Closing Date (“Tax Returns”) relating to any and all Taxes concerning or attributable to the Company Seller or its operations, operations occurring before the Closing Date and such Tax Returns are shall be true and correct in all material respects and have been or will be completed in accordance with applicable law and (b) timely paid in full all Taxes it is required to paydue and payable by Seller on or before the Closing Date.
(ii) The Company Seller has withheld or paid to the appropriate authorities or withheld depositories, with respect to its Employees, stockholders Employees and other third parties, all U.S. federal, state and non-U.S. foreign income Taxes taxes and social security charges and similar fees, Federal Insurance Contribution Act amountsAct, Federal Unemployment Tax Act amounts and other Taxes required to be paid so withheld or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepaid.
(iii) The Company has Seller is not been now delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor Seller. Seller has the Company not executed any waiver of any statute of limitations that has not expired on or extending the period for the assessment or collection of any Tax.
(iv) No governmental agency is conducting an audit or other examination of any Tax Return of the Company is presently in progressSeller, nor has the Company Seller been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Seller does not have any liability for unpaid Taxes as of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes Date which have has not been accrued or reserved on the Current Balance Sheet, whether asserted or unasserted, contingent or otherwise, and the Company Seller has not incurred any Liability liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company Seller has made available provided to Parent Buyer or its legal counsel, counsel copies of all income and other material Tax the following Returns for the Company following periods: all federal income tax returns for the prior three (3) taxable yearstax years 2007, 2008, and 2009, and all state income tax, gross receipts and franchise tax returns for the tax years 2007, 2008, and 2009, that were actually filed by Seller.
(vii) There are (and immediately following the Effective Time Closing Date there will be) no Liens on the assets of the Company Seller relating to or attributable to Taxes other than Liens for Taxes not yet due and payable. Seller 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 Seller.
(viii) The Company None of Seller’s assets is treated as “tax exempt use property,” within the meaning of Section 168(h) of the Code.
(ix) 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, (b) never been a party to any Tax sharing, indemnification or allocation agreement, (c) no liability for the Taxes of any Person (other than Seller), under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or agreement, or otherwise and (d) never been a party to any joint venture, partnership, limited liability Seller or other arrangement that could be treated as a partnership for Tax purposes.
(x) Seller’s Tax basis in its assets for purposes of determining its future amortization, depreciation and other income Tax deductions is accurately reflected on its Tax Books and Records.
(xi) Seller 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.
(ixxii) The Company No adjustment relating to any Return that has been filed by Seller and for which the period for the making of such adjustment has not constituted either expired by the application of a “distributing corporation” or a “controlled corporation” statute of limitation, has been proposed in a distribution of stock intended writing to qualify for tax‑free treatment under Section 355 of the CodeSeller by any tax authority.
(xxiii) The Company Seller has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the 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 Treasury Regulation Section 1.6011-1.6011 4(b)(2).
(xixiv) The Company Seller has (A) never been not ever received written notice of a member of an affiliated group (within the meaning of Section 1504(a) of the Code) filing claim made by a consolidated federal income Tax Return (other than authority in a group the common parent of which was the Company), (B) never been a party jurisdiction where it does not file Returns that it is or may be subject to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, taxation by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesjurisdiction.
(xiixv) The Company Seller has never granted a power of attorney (or similar authority) as to any matters regarding Taxes that will have effect as of the Closing Date.
(xvi) Seller will not be required to include any item of income or gain in, or exclude any item of deduction or loss from Taxable from, taxable income for any Tax taxable period (or portion thereof thereof) ending after the Closing Date as a result of (A) any a change in method of accounting under Section 481 of the Code for any Tax a taxable period (or portion thereof thereof) ending on or prior to the Closing Date, (B) any “closing agreement under agreement” as described in Section 7121 of the Code executed on (or prior to the Closing Dateany corresponding provision of state, local or foreign Tax law), (C) deferred inter-company gain any interseller transaction or any excess loss account under as described in Treasury Regulations under Regulation Section 1502 1.1502-19 (or any corresponding or similar provision or administrative rule of the Code in connection with a federal, state, local or foreign Tax law), (D) any installment sale or open transaction consummated made on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) as a result of any prepaid amount received on or prior to the Closing Date.
(xiiixvii) The Company uses the cash method Seller has disclosed on its federal income Returns all positions taken therein that could reasonably be expected to give rise to a substantial understatement of accounting for federal income Tax purposeswithin the meaning of Section 6662 of the Code.
(xivxviii) The Company is Seller did not (i) participate in full compliance with all terms and conditions any “tax shelter” within the meaning of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation Section 6662 of the transactions contemplated by this Agreement will not have Code, or (ii) file IRS Form 8275 or 8275-R or any adverse effect on the continued validity and effectiveness of any such predecessor or successor thereof or analogous or similar Tax Incentiveform under Law.
(xvxix) The Company is Seller has always been taxed as a partnership for federal and state income tax purposes and has not, and will not subject to Tax in any country other than its country of incorporation on or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement prior to the contraryClosing Date, the Company makes no representations file an election to be taxed as a corporation for any federal or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closingstate tax purposes.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) and the Subsidiary have prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“Tax Returns”) Returns required to be filed relating to any and all material Taxes concerning or attributable to the Company Company, the Subsidiary or its their respective operations, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid in all Taxes it is required to paymaterial respects.
(ii) The Company has and the Subsidiary have timely paid or withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other material Taxes required to be paid or withheld, and has have timely withheld and paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Governmental Entity all material Taxes that are required to be withheld and paid over. No income tax or withheld employment tax withholding has been required with respect to the exercise of any transaction or event occurring or payment made to such payees through and including the Closing DateCompany Option.
(iii) The Company has not been delinquent in the payment delivered or made available to Parent complete and correct copies of any Tax, nor is there any all Tax deficiency outstanding, assessed or proposed against the Company, nor has Returns of the Company and the Subsidiary relating to Taxes for all taxable periods for which the applicable statute of limitations has not yet expired.
(iv) Neither the Company nor the Subsidiary has (a) executed any outstanding waiver of any statute of limitations on with respect to, or extending outstanding extension of the period for the assessment or collection of, any Tax (b) requested any extension of time within which to file any TaxTax Return, which Tax Return has not yet been filed, or (c) executed or filed any power of attorney with any taxing authority, which is still in effect.
(ivv) No audit or other examination of any Tax Return of the Company or the Subsidiary is presently in progress, nor has the Company or the Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority Governmental Entity that the Company or the Subsidiary is or may be subject to taxation Tax in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(vvi) As of the Balance Sheet Date, Neither the Company does not have nor the Subsidiary has any Liabilities material liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance SheetCompany’s unaudited consolidated balance sheet as of September 30, 2011 in accordance with GAAP, and neither the Company nor the Subsidiary has not incurred any Liability material liability for Taxes since the date of the Company Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no material 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 payablePermitted Liens.
(viii) The Company is not, nor has not been, been at any relevant time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) The Neither the Company nor the Subsidiary (a) has not ever been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return (other than a group the common parent of which was Company), (b) owes any amount under any Tax sharing, indemnification or allocation agreement, or (c) has any liability for the Taxes of any Person (other than Company or the Subsidiary) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise (other than real property leases and equipment leases pursuant to which the Company or the Subsidiary is obligated to pay all or a portion of the property taxes with respect to the leased property (including common areas, if any) and/or sales or use tax measured either by the acquisition cost of the leased property or measured by the rental payments).
(x) Neither the Company nor the Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free tax-free treatment under Section 355 of the Code.
(xxi) The Neither the Company has not engaged in nor the Subsidiary will be required to include any item of income in, or exclude any item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a reportable transaction result of (a) any adjustments under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one 481 of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, Code (or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a) any similar adjustments under any provision of the Code) filing a consolidated federal income Tax Return (other than a group the common parent Code or any corresponding provision of which was the Companyforeign, state or local law), (Bb) never been a party to deferred intercompany gain or any Tax sharing, indemnification or allocation agreement, nor does excess loss account described in Treasury Regulations under Section 1502 of the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 Code (or any corresponding provision of state, local or foreign law), (c) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. foreign law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A), (B) and (C), under any similar provision of applicable law), (Dd) installment sale or open transaction disposition consummated made on or prior to the Closing Date, or (Ee) prepaid amount received on or prior to the Closing Date, or (f) any election made pursuant to Section 108(i) of the Code on or prior to the Closing Date.
(xii) Neither the Company nor the Subsidiary has or has had a permanent establishment in any foreign country as defined in any applicable Tax treaty or convention between the United States and such foreign country.
(xiii) The Neither the Company uses nor the cash method of accounting for income Tax purposes.
(xiv) The Company is Subsidiary has engaged in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”listed transaction” under Treas. Reg. § 1.6011-4(b)(2), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in the Pacific Disclosure Schedule:
(i) The Company Each of Pacific and its Subsidiaries has (a) prepared and timely filed all income and other material U.S. required federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") required to be filed relating to any and all Taxes concerning or attributable to the Company Pacific or such Subsidiary or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in all material respects in accordance with applicable law and (b) timely paid all or, with respect to any Taxes it is required to paypayable, an adequate reserve has been established on the Pacific Interim Balance Sheet.
(ii) The Company Each of Pacific and its Subsidiaries: (A) has paid or accrued all Taxes set forth on its Returns, and (B) has withheld and paid (or will pay at the time required) with respect to its Employeesemployees all federal and state income taxes, stockholders and other third partiesFICA, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been Neither Pacific nor any of its Subsidiaries is delinquent in any material respect in the payment of any Tax, Tax nor is there any material Tax deficiency outstanding, proposed or assessed against Pacific or proposed against the Companyany of its Subsidiaries, nor has the Company Pacific or any Subsidiary executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No Other than the audits set forth in the PACIFIC DISCLOSURE SCHEDULE, no audit or other examination of any Tax Return of the Company Pacific is presently currently in progress, nor has the Company Pacific or any Subsidiary been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As Pacific and its Subsidiaries did not have, as of the Balance Sheet DateSeptember 30, the Company does not have 1998, any Liabilities liabilities, whether asserted or unasserted, contingent or otherwise, for unpaid federal, state, local and foreign Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Pacific Interim Balance Sheet, and the Company neither Pacific nor any of its Subsidiaries has not incurred any Liability for Taxes such liabilities since the Balance Sheet Date other than such date except in the ordinary course of businessbusiness and consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and as of immediately following the Effective Time Date there will be) no Liens liens, pledges, charges, claims, security interests or other encumbrances of any sort ("Liens") of a material nature on the assets of the Company Pacific or any Subsidiary relating to or attributable to Taxes other than Taxes, except for Liens for Taxes not yet due and payablepayable or that are being contested in good faith by appropriate proceedings.
(vii) Neither Pacific nor any Subsidiary has received written or oral notice of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of Pacific or any Subsidiary.
(viii) The Company None of Pacific's or its Subsidiaries' assets are treated as "tax-exempt use property" within the meaning of Section 168(h) of the Code.
(ix) 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 Pacific or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code or the limitations in Sections 162 of the Code.
(x) Neither Pacific nor any of its Subsidiaries has not been, 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 Pacific or such Subsidiary.
(xi) Neither Pacific nor any of its Subsidiaries is a party to a tax sharing or allocation agreement nor does Pacific or any Subsidiary owe any amount under any such agreement.
(xii) Neither Pacific nor any of its Subsidiaries is or has been at any timetime during the period specified in Section 897(c)(1)(A)(ii) of the Code, a “"United States Real Property Holding Corporation” real property holding corporation" within the meaning of Section 897(c)(2) of the Code.
(ixxiii) The Company Neither Pacific nor any Subsidiary has not constituted either a “distributing corporation” agreed to, or a “controlled corporation” in a distribution of stock intended to qualify for tax‑free treatment is required to, make any adjustments under Section 355 of the Code.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated group (within the meaning of Section 1504(a481(c) of the Code) filing Code by reason of a consolidated federal income Tax Return (other than a group the common parent of which was the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into change in the ordinary course of business the primary purpose of which is not related to Taxes), accounting method 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared Target and each of its subsidiaries have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports (“Tax "Returns”") relating to Taxes required to be filed by Target and each of its subsidiaries with any Tax authority. Target and all Taxes concerning or attributable to the Company or each of its operations, and such Tax Returns are true and correct in all material respects and subsidiaries have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid or Target and each of its subsidiaries as of the Effective Time will have withheld with respect to its Employeesemployees all material federal and state income taxes, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, pursuant to the Federal Insurance Contribution Act amountsAct, Taxes pursuant to the Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company Neither Target nor any of its subsidiaries has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed against Target or proposed against the Companyany of its subsidiaries, nor has the Company Target or any of its subsidiaries executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company Target or any of its subsidiaries by any Tax authority is presently in progress, nor has the Company Target or any of its subsidiaries been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company Target or any of its subsidiaries has been proposed in writing formally or informally by any Tax authority. The Company is not a party authority to Target or bound by any closing of its subsidiaries or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businessrepresentative thereof.
(vi) The Company Neither Target nor any of its subsidiaries has made available any liability for any unpaid Taxes which has not been accrued for or reserved on the Target Balance Sheet in accordance with GAAP, whether asserted or unasserted, contingent or otherwise, which is material to Parent or Target, other than any liability for unpaid Taxes that may have accrued since the date of the Target Balance Sheet in connection with the operation of the business of Target and its legal counsel, copies of all income and other material Tax Returns for subsidiaries in the Company for the prior three (3) taxable yearsordinary course.
(vii) There are (and immediately following the Effective Time there will be) is no Liens on the assets contract, agreement, plan or arrangement to which Target or any of its subsidiaries is a party as of the Company relating date of this Agreement, including but not limited to the provisions of this Agreement, covering any employee or attributable former employee of Target or any of its subsidiaries that, individually or collectively, would reasonably be expected to Taxes other than Liens give rise to the payment of any amount as a result of the Merger that would not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan or arrangement to which Target is a party or by which it is bound to compensate any individual for Taxes not yet due and payableexcise taxes paid pursuant to Section 4999 of the Code.
(viii) The Company Neither Target nor any of its subsidiaries has not beenfiled 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 Target or any of its subsidiaries.
(ix) Neither Target nor any of its subsidiaries is party to or has any obligation under any tax-sharing, at any time, a “United States Real Property Holding Corporation” tax indemnity or tax allocation agreement or arrangement.
(x) None of Target's or its subsidiaries' assets are tax exempt use property within the meaning of Section 897(c)(2168(h) of the Code.
(ixxi) The Company has not constituted either Neither Target nor any of its subsidiaries was a “"distributing corporation” " or a “controlled "controlling corporation” " in a distribution of stock intended to qualify for tax‑free treatment under which Section 355 of the Code.
(x) The Company has not engaged in Code applied and that occurred within two years before the date of this Agreement or as part of a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same plan or substantially similar to one of the types series of transactions that includes the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)Merger.
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2.8 of the KnowledgeWell Disclosure Letter:
(i) The Company has (a) KnowledgeWell as of the Closing Date will have prepared and timely filed all income and other material required national, U.S. federal, U.S. state, U.S. local and non-U.S. returns, estimates, information statements and reports (“Tax "Returns”") relating to any and all Taxes concerning or attributable to the Company KnowledgeWell or its operations, operations and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and law.
(bii) timely KnowledgeWell as of the Closing Date: (A) will have paid or accrued all Taxes it is required to pay.
pay or accrue and (iiB) The Company has paid or will have withheld with respect to its Employees, stockholders and other third parties, employees all U.S. federalfederal and U.S. state income taxes, state and non-U.S. income Taxes and social security charges and similar feesFICA, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts FUTA and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company KnowledgeWell has not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyKnowledgeWell, nor has the Company KnowledgeWell executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company KnowledgeWell is presently in progress, nor has the Company KnowledgeWell been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company KnowledgeWell does not have any Liabilities liabilities for unpaid U.S. federal, state, U.S. local or non-U.S. Taxes which have not been accrued or reserved against in accordance with GAAP on the Current Balance SheetSheets, whether asserted or unasserted, contingent or otherwise, and KnowledgeWell has no knowledge of any basis for the Company has not incurred assertion of any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of businesssuch liability attributable to KnowledgeWell, its assets or operations.
(vi) The Company KnowledgeWell has made available provided to Parent or its legal counsel, CBT copies of all U.S. federal and U.S. state income and other material all U.S. state sales and use Tax Returns for all periods since the Company for the prior three (3) taxable yearsdate of KnowledgeWell's incorporation.
(vii) There are (and as of immediately following the Effective Time Closing there will be) no Liens on the assets of KnowledgeWell relating to or attributable to Taxes.
(viii) KnowledgeWell has no knowledge of any basis for the Company assertion of any claim relating or attributable to Taxes other than Liens for Taxes not yet due and payablewhich, if adversely determined, would result in any Lien on the assets of KnowledgeWell.
(viiiix) The Company has not been, at any time, a “United States Real Property Holding Corporation” None of KnowledgeWell's assets are treated as "tax-exempt use property" within the meaning of Section 897(c)(2168(h) of the Code.
(ix) 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.
(x) The Company has As of the Closing Date, there will not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)be any contract, agreement, plan or arrangement, including a transaction but not limited to the provisions of this Agreement, covering any employee or former employee of KnowledgeWell that, individually or collectively, will, or would reasonably be expected to, give rise to the payment of any amount that is the same would not be deductible pursuant to Section 280G or substantially similar to one 162 of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2)Code.
(xi) The Company has (A) never 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 the Company), (B) never been KnowledgeWell is not a party to any Tax sharing, indemnification a tax sharing or allocation agreement, agreement nor does the Company KnowledgeWell owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
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 non-U.S. returns, estimates, information statements and reports reports, including any attachments or schedules thereto and amendments thereof (“Tax Returns”) relating to any and all Taxes concerning or attributable to of the Company or and its operations, subsidiaries and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is they are required to pay.
(ii) The Company has and its subsidiaries have paid or withheld with respect to its Employees, stockholders their Employees and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely have paid over any such withheld Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing DateGovernmental Authorities.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no Tax deficiency outstanding, assessed 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 extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax Return of the Company or any of its subsidiaries is presently in progress, nor has the Company been notified in writing of any request for such an audit or other examination, and . No adjustment relating to any Return filed by the Company does not have Knowledge that or any such action or proceeding is being contemplated. No claim of its subsidiaries has ever been made proposed in writing by any 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. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Datedate of the Current Financials, neither the Company does not have nor any Liabilities of its subsidiaries had liabilities for unpaid Taxes which have had not been accrued or reserved on the Current Balance SheetFinancials, whether asserted or unasserted, contingent or otherwise, and neither the Company nor any of its subsidiaries has not incurred any Liability liability for Taxes since the Balance Sheet Date date of the Current Financials other than in the ordinary course of business, consistent with past practices.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company and its subsidiaries filed for all periods for which the prior three (3) taxable yearsapplicable statute of limitations period has not expired.
(vii) There are (and immediately following the Effective Time there will be) no 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) Neither the Company nor any of its subsidiaries (a) 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 group the common parent of which is or was the Company), (b) is a party to any Tax Sharing Agreement or arrangement, nor does the Company or any of its subsidiaries owe any amount under such a Tax Sharing Agreement, and (c) has any liability for the Taxes of any Person (other than the Company of any of its subsidiaries) under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by operation of law, by contract or agreement, or otherwise.
(ix) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ixx) 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‑free tax- free treatment under Section 355 of the Code.
(xxi) The Company has not engaged in a reportable listed transaction under Treasury Regulation Section Treas. Reg. § 1.6011-4(b4Cb), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company has disclosed on its U.S. federal income Tax Returns all positions taken therein which could give rise to a substantial understatement of Tax within the meaning of Section 6662 of the Code.
(xiii) Neither the Company nor any of its subsidiaries will not be required to include any material item of income or gain or exclude any material items of deduction or loss from Taxable income for any Tax taxable period or portion thereof beginning after the Closing Date as a result of any (Aa) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending made on or prior to the Closing Date, (Bb) closing agreement under Section 7121 of the Code (or any similar provision of applicable Law) executed on or prior to the Closing DateClosing, (Cc) deferred inter-company intercompany gain or excess loss account under Treasury Regulations under Section 1502 of the Code (or any similar provision of applicable Law) in connection with a transaction consummated on or prior to the Closing Date (or in the case of each of (A)Date, (B) and (C), under any similar provision of applicable law), (Dd) installment sale or open transaction disposition consummated on or prior to the Closing Date, or Date (Ee) prepaid amount received on or prior to Closing Date or (f) election under Section 108(i) of the Closing Date.
Code (xiii) The Company uses the cash method or under any similar provision of accounting for income Tax purposesapplicable Law).
(xiv) The Company uses the accrual method of accounting for Tax purposes.
(xv) Neither the Company nor any of its subsidiaries has entered into any written arrangement (including “rulings”) with any Tax authority or is subject to a special regime with regard to the payment of Taxes.
(xvi) The Company and its subsidiaries are in full compliance in all material respects 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.
(xvxvii) The Company is not subject to Tax in prices for any country other than its country property or services (or for the use of incorporation any property) provided by or formation by virtue of having a permanent establishment or other place of business in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute and its subsidiaries are arm’s length prices for purposes of the Companyapplicable transfer pricing Laws, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or Treasury Regulations promulgated under Section 482 of the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the ClosingCode.
Appears in 1 contract
Tax Returns and Audits. Except as may be disclosed by ID in Section 2.15 of the ID Disclosure Letter:
(i) The Company ID has (a) prepared and timely filed all income and other material U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports (“foreign Tax Returns”) relating Returns required to any and all Taxes concerning or attributable to the Company or its operations, and such be filed by ID. Such Tax Returns are true and correct in all material respects and respects, have been completed in all material respects in accordance with applicable law Law, and (b) timely paid all Taxes it is required shown to paybe due on such Tax Returns have been paid, other than any Taxes that are being contested in good faith pursuant to appropriate proceedings and for which adequate reserves have been established.
(ii) The Company ID has paid delivered or withheld made available to CHC correct and complete copies of all income Tax Returns of ID, and all examination reports, statements of deficiencies assessed against or agreed to by ID or ID Member (with respect to its Employeesthe ownership, stockholders operation or management of ID), and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld material correspondence with Taxing authorities filed with respect to ID, or received by ID or ID Member (with respect to the ownership, operation or management of ID), with respect to taxable periods beginning on or after January 1, 2017. There are no liens for Taxes (other than Taxes not yet due and payable or the amount or validity of which is being contested in good faith and for which adequate reserves have been established) upon any transaction assets of ID, or event occurring any units, stock or payment made to such payees through and including the Closing Datemembership interests in ID.
(iii) The Company has not been delinquent in the payment of any Tax, nor There is there any no outstanding unresolved Tax deficiency outstandingproposed or assessed in writing against ID or ID Member (with respect to the ownership, assessed operation or proposed against the Companymanagement of ID) by a Taxing authority, nor has the Company ID executed any unexpired waiver or extension of any statute of limitations on or extending the period for the assessment assessment, reassessment or collection of any Tax, and no power of attorney granted by ID with respect to any Taxes is currently in force, other than powers of attorney entered into in connection with, and limited to, the preparation or filing of Tax Returns.
(iv) No audit Tax audits, other administrative proceedings or other examination of any Tax Return of the Company is court proceedings are presently pending or in progress, nor has the Company been notified in writing of any request for such an audit or other examination, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating progress with regard to any Taxes or Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to Returns of ID or bound by any closing or other agreement or ruling with any Governmental Entity ID Member (with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyownership, operation or management of ID).
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company ID has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never been a member of an affiliated any consolidated, combined or unitary group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income for federal, state, local or foreign Tax Return purposes (other than a group the common parent of which is or was the CompanyID). ID has no liability for Taxes of any Person (other than ID) under Treasury Regulation Section 1.1502-6 (or any corresponding provision of state, local or foreign Law), as transferee or successor, by Tax Sharing Agreement or otherwise pursuant to Law.
(Bvi) ID has been treated as an “S corporation” for U.S. federal income tax purposes since its formation.
(vii) ID has (i) withheld all material Taxes required to be withheld from its employees, agents, contractors and nonresident members and remitted such amounts to the proper agencies to the extent required by applicable Law; (ii) paid all required material employer payroll Taxes and withholdings due and payable by ID; and (iii) filed all material Tax Returns with respect to employee income tax withholdings, Social Security and unemployment taxes and premiums, and other payroll Taxes required to be filed by ID, all in compliance in all material respects with applicable law.
(viii) ID has never been a party to any Tax sharing, indemnification or allocation agreement, nor does the Company owe any amount under any such agreement, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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 purposesSharing Agreement.
(xiiix) The Company ID will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (Ai) any a change in method of accounting under Section 481 made prior to the Closing or determination by a taxing authority of the Code ID’s use of an improper method of accounting for any Tax a taxable period or portion thereof ending on or prior to the Closing Date, (Bii) any “closing agreement under agreement,” as described in Section 7121 of the Code executed Code, or any corresponding provision of state or local Law, with respect to a taxable period ending on or prior to the Closing Date entered prior to the Closing, (iii) any installment sale or open transaction disposition occurring during a taxable period ending on or prior to the Closing Date, (Civ) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 the receipt of the Code in connection with a transaction consummated any prepaid revenue on or prior to the Closing Date (or in the case of each of (A)Date, (Bv) and (C), an election under any similar provision Section 108(i) of applicable law), (D) installment sale or open transaction disposition consummated the Code made prior to the Closing with respect to a taxable period ending on or prior to the Closing Date, or (Evi) prepaid amount received on or any delay of payment of employment taxes under Section 2302 of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) made prior to the Closing, the advance refunding of credits under Section 3606 of the CARES Act made prior to the Closing Date(collectively, (i) through (vi), the “Tax Accrual Amounts”), to include any material item of income or exclude any material item of deduction for any taxable period (or portion thereof) beginning after the Closing that would not have otherwise so been included or excluded as the case may be.
(x) No written claim has been made by a Taxing authority in a jurisdiction where ID does not file Tax Returns that ID is subject to taxation by such jurisdiction.
(xi) In the past five (5) years, ID has not distributed, or been distributed by, a corporation in a transaction that was intended to qualify under Code Section 355.
(xii) ID has not engaged in any transaction which is a “listed transaction” within the meaning of Income Tax Regulation Section 1.6011-4(b).
(xiii) The Company uses Neither ID nor any of its Affiliates has taken or agreed to take any action, nor does ID or ID Member have knowledge of any fact or circumstance that could reasonably be expected to prevent the cash method Merger from qualifying as a reorganization within the meaning of accounting for income Tax purposesSection 368(a) of the Code. To ID’s Knowledge, there are no agreements, plans or other circumstances that would reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(xiv) The Company Notwithstanding anything to the contrary in this Agreement (i) the representations and warranties set forth in Section 2.9(r), this Section 2.15(b) and Sections 2.11 and 2.12 (solely as they relate to Taxes) are the only representations and warranties being made by ID in this Agreement with respect to Taxes and (ii) ID is in full compliance with all terms not making, and conditions shall not be construed to have made, any representation or warranty as to the amount or utilization of any Tax exemptionnet operating loss, Tax holiday tax credit, tax basis or other Tax reduction agreement or order (each, a “Tax Incentive”attribute of ID after the Closing Date. None of the representations in this Section 2.15(b) other than Sections 2.15(b)(v), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”Section 2.15(b)(viii), Section 2.15(b)(ix) or the ability of Parent Section 2.15(b)(xi) may be relied upon to claim indemnification for Taxes for any taxable period (or any of its affiliates (including the Surviving Corporationportion thereof) to utilize such Tax Attributes beginning after the ClosingClosing Date.
Appears in 1 contract
Tax Returns and Audits. (i) 1. The Company has (a) Corporation and the Subsidiaries have correctly computed all Taxes prepared and duly and timely filed all income and other material U.S. federal, stateprovincial, local and non-U.S. foreign returns, estimates, information statements and reports (“"Tax Returns”) relating "), required to any and all Taxes concerning or attributable to the Company or its operationsbe filed by them, and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and (b) timely paid all Taxes it is required which are due and payable and have made adequate provision in the Financial Statements for the payment of all Taxes that are or may become payable for any taxation year ending on or prior to pay.
(ii) March 31, 1999. The Company has paid or withheld with respect to its Employees, stockholders Corporation and other third parties, all U.S. federal, state the Subsidiaries have made adequate and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other timely installments of Taxes required to be paid or withheld, made.
2. With respect to any periods for which Tax Returns the Corporation and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are Subsidiaries have not yet been required to be paid filed or withheld with respect to any transaction or event occurring or payment made to such payees through for which Taxes are not yet due and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Taxpayable, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any 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, and the Company does not they have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Company.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not only incurred any Liability liabilities for Taxes since the Balance Sheet Date other than in the ordinary course of businessits business and in a manner consistent with prior periods.
3. All Tax Returns of the Corporation and the Subsidiaries have been assessed through and including each of the dates set forth in Schedule 3.1(w), and there are no outstanding waivers, except as set forth in Schedule 3.1(w), 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 Corporation and the Subsidiaries or any outstanding objections to any assessment or reassessment of Taxes. Any deficiencies proposed as a result of such assessments or reassessments of the Tax Returns through and including the dates set forth in Schedule 3.1(w) have been paid and settled with the exception of the GST/PST Taxes assessments as set forth in Schedule 3.1(j).
4. There are no contingent Tax liabilities or any grounds that could prompt an assessment or reasssessment, including, but without limitation, aggressive treatment of income, expenses, deductions, credits or other amounts in the filing of earlier or current Tax Returns, nor have the Corporation and the Subsidiaries received any indication from any taxation authorities that an assessment or reassessment of Tax is proposed.
5. The Corporation and the Subsidiaries have withheld form each payment made to any of their past and present shareholders, directors, officers, employees and agents the amount of all Taxes and other deductions required to be withheld and have 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 Corporation and the Subsidiaries have collected from each receipt from any of the past and present customers (vior other persons paying amounts to the Corporation) the amount of all Taxes (including goods and services tax and provincial sales taxes) required to be collected and have remitted such Taxes when due, in the form required under the appropriate legislation or made adequate provision for the payment of such amount to the proper receiving authorities.
7. The Company Corporation and the Subsidiaries are not subject to any assessments, levies, penalties or interest with respect to Taxes which will result in any liability on their part in respect of any period ending on or prior to the date hereof, in excess of the amount to be provided for in the Financial Statement.
8. The Corporation and the Subsidiaries have not been and are not currently required to file any returns, reports, elections, designations or other filings with any taxation authority located in any jurisdiction outside Canada or outside the province of Quebec.
9. Except as disclosed in Schedule 3.1(w), the Ccorporation and the Subsidiaries have not filed or been party to any election pursuant to Section 83 or 85 of the Income Tax Act (Canada) (the "ITA") or the corresponding provisions of any provincial statute.
10. The Corporation and the Subsidiaries have not at any time benefited from a forgiveness of debt, except pursuant to the transaction with Pantorama Industries Inc. referred to in Schedule 3.1(l), 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 or the relevant provisions of any provincial statute.
11. Since its data of incorporation, the Corporation and each of the Subsidiaries has been a "Canadian controlled private corporation" within the meaning of the ITA and the relevant provincial legislation.
12. Except as disclosed in Schedule 3.1(w), the Corporation and the Subsidiaries are not, nor have they been at any time, associated (within the meaning of the ITA and the relevant provincial legislation) with any other corporation.
13. The Corporation and the Subsidiaries have made available to Parent Purchaser or its legal counsel, copies of all available foreign, federal, state, provincial and local income and other material all state and local sales and use Tax Returns for the Company Corporation and the Subsidiary filed for the prior three (3) taxable yearsall periods since its inception.
(vii) 14. There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company Corporation or any Subsidiaries relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) 15. As of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b)Closing, including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company there will not be required to include any income contract, agreement, plan or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Companyarrangement, including but not limited to net operating losses the provisions of this Agreement, covering any employee or former employee of the Corporation that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Corporation or the Subsidiaries as an expense under applicable Law other than reimbursements of a reasonable amount of travel, entertainment expenses and research other nondeductible expenses that are commonly paid by similarly situated businesses in reasonable amounts.
16. The Corporation and development creditsthe Subsidiaries tax basis in their assets (and the undepreciated capital cost of such assets) for purposes of determining their future amortization, arising in any Pre-Closing depreciation and other Federal and provincial income tax deductions is accurately reflected on the Corporation's Tax Period (each, a “Tax Attribute”)Returns and records.
17. The Corporation and the Subsidiaries have not acquired property or services from, or disposed of property, or provided services to a person with whom they do not deal at arm's length (within the ability meaning of Parent the ITA and the relevant provincial legislation) for an amount that is other than the fair market value of such property or any services, or have been deemed to have done so for purposes of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after ITA and the Closingrelevant provincial legislation.
Appears in 1 contract
Tax Returns and Audits. (i) The Company has (a) prepared and timely filed To the extent that failure to do so would adversely impact the Purchased Assets or the Buyer Parties’ ownership of the Purchased Assets or operation of the Business, all income and other material required U.S. federal, state, local and non-U.S. any non‑U.S. returns, estimates, information statements and reports (“Tax Returns”) relating to any and all Taxes concerning or attributable to Seller’s operation of the Company or its operations, Business and the Purchased Assets have been prepared and timely filed and such Tax Returns are true and correct in all material respects and have been completed in accordance with applicable law and Law.
(bii) There are no Liens on the Purchased Assets relating or attributable to Taxes, other than Permitted Liens.
(iii) To the extent that failure to do so would adversely impact the Purchased Assets or the Buyer Parties’ ownership of the Purchased Assets or operation of the Business, Seller has timely paid all Taxes it is required to pay.
(ii) The Company pay and Seller has timely paid or withheld with respect to its Employees, stockholders employees and other third partiesThird Parties (and timely paid over any withheld amounts to the appropriate Tax authority) any U.S. federal and state income, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts wage and other Taxes required to be paid withheld or withheld, and has timely paid over any such Taxes over to the appropriate authorities, and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Date.
(iii) The Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Taxpaid.
(iv) No Seller has no Knowledge of any basis for the assertion of any claim for any Liabilities for unpaid Taxes for which the Buyer Parties would become liable as a result of the transactions contemplated by this Agreement or that would result in any Lien (other than Permitted Liens) on any of the Purchased Assets
(v) To the extent applicable to the Purchased Assets or the Buyer Parties’ ownership of the Purchased Assets or operation of the Business, (i) no audit or other examination of any Tax Return of the Company Seller is presently in progress, nor has the Company Seller been notified in writing of any request for such an audit or other examination; (ii) no adjustment relating to any Return filed by Seller has been proposed formally or, to the Knowledge of Seller, informally by any Tax authority to Seller or any representative thereof; and the Company does not have Knowledge that any such action or proceeding is being contemplated. No (iii) no claim has ever been made by an authority in writing by any Tax authority a jurisdiction where Seller does not file Returns that the Company it is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. No adjustment relating to any Tax Return filed by the Company has been proposed by any Tax authority. The Company is not a party to or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companythat jurisdiction.
(v) As of the Balance Sheet Date, the Company does not have any Liabilities for unpaid Taxes which have not been accrued or reserved on the Current Balance Sheet, and the Company has not incurred any Liability for Taxes since the Balance Sheet Date other than in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose of which is not related to Taxes), 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing Date.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
Appears in 1 contract
Tax Returns and Audits. Except as set forth in Schedule 2(a)(xvii) hereto, to the knowledge of Infosmart:
(i) The Company has (a) prepared and Affiliated Companies have timely filed all income and other material U.S. federal, state, local and non-U.S. foreign returns, estimates, information statements and reports relating to Taxes (“Tax Returns”) relating required to be filed by the Affiliated Companies with any and all Taxes concerning or attributable Tax authority prior to the Company or its operations, and date hereof. All such Tax Returns are true true, correct and correct complete in all material respects and respects. The Affiliated Companies have been completed in accordance with applicable law and (b) timely paid all Taxes it is required shown to paybe due on such Returns.
(ii) The Company has paid All Taxes that the Affiliated Companies are required by law to withhold or collect have been duly withheld with respect to its Employees, stockholders and other third parties, all U.S. federal, state and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and other Taxes required to be paid or withheldcollected, and has have been timely paid over any such Taxes over to the appropriate authorities, proper governmental authorities to the extent due and will pay or withhold (and pay over) such Taxes that are required to be paid or withheld with respect to any transaction or event occurring or payment made to such payees through and including the Closing Datepayable.
(iii) The Company has Affiliated Companies have not been delinquent in the payment of any Tax, Tax nor is there any Tax deficiency outstanding, proposed or assessed or proposed against the CompanyAffiliated Companies, nor has have the Company Affiliated Companies executed any unexpired waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
(iv) No audit or other examination of any Tax 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, and the Company does not have Knowledge that any such action or proceeding is being contemplated. No claim has ever been made in writing by any Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Tax Returns. .
(v) No adjustment relating to any Tax Return Returns filed by the Company Affiliated Companies has been proposed in writing, formally or informally, by any Tax authority. The Company is not a party authority to the Affiliated Companies or bound by any closing or other agreement or ruling with any Governmental Entity with respect to Taxes. There are no matters relating to Taxes under discussion between any taxing authority and the Companyrepresentative thereof.
(vvi) As of the Balance Sheet Date, the Company does not The Affiliated Companies have no liability for any Liabilities for unpaid Taxes which have not been accrued for or reserved on Infosmart’s balance sheets included in the Current Balance SheetU.S. GAAP Financial Statements for the most recent fiscal year ended, and the Company has not incurred whether asserted or unasserted, contingent or otherwise, other than any Liability liability for unpaid Taxes that may have accrued since the Balance Sheet Date other than end of the most recent fiscal year in connection with the operation of the business of the Affiliated Companies in the ordinary course of business.
(vi) The Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company for the prior three (3) taxable years.
(vii) There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating or attributable to Taxes other than Liens for Taxes not yet due and payable.
(viii) The Company has not been, at any time, a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code.
(ix) 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.
(x) The Company has not engaged in a reportable transaction under Treasury Regulation Section 1.6011-4(b), including a transaction that is the same or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).
(xi) The Company has (A) never 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 the 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, (C) no Liability for the Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law, including any arrangement for group or consortium relief or similar arrangement), as a transferee or successor, by operation of law, by contract (other than pursuant to the customary provisions of an agreement entered into in the ordinary course of business the primary purpose none of which is not related material to Taxes)the business, results of operations 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.
(xii) The Company will not be required to include any income or gain or exclude any deduction or loss from Taxable income for any Tax period or portion thereof after the Closing as a result of (A) any change in method of accounting under Section 481 financial condition of the Code for any Tax period or portion thereof ending on or prior to the Closing Date, (B) closing agreement under Section 7121 of the Code executed on or prior to the Closing Date, (C) deferred inter-company gain or excess loss account under Treasury Regulations under Section 1502 of the Code in connection with a transaction consummated on or prior to the Closing Date (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 on or prior to the Closing Date, or (E) prepaid amount received on or prior to the Closing DateAffiliated Companies.
(xiii) The Company uses the cash method of accounting for income Tax purposes.
(xiv) The Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(xv) 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 in that country.
(xvi) Notwithstanding anything in this Agreement to the contrary, the Company makes no representations or warranties regarding the amount, value or condition of, or any limitations on, any Tax asset or attribute of the Company, including but not limited to net operating losses and research and development credits, arising in any Pre-Closing Tax Period (each, a “Tax Attribute”), or the ability of Parent or any of its affiliates (including the Surviving Corporation) to utilize such Tax Attributes after the Closing.
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